Mortgage during divorce: 4 ways to divide debts and property with minimal losses

Issues that arise during divorce and division of property cannot be ignored, especially if there are children and the apartment is under mortgage.

Whether the division of a mortgaged apartment will be successful in the event of a divorce depends on a number of factors:

whether there was an official marriage between the spouses;
when the housing was purchased with a mortgage - after marriage or before registration (for example, partners lived in the same living space);
Is there a prenuptial agreement?

In accordance with the legislative norms of the Russian Federation, all property (movable, immovable) purchased by spouses after an official marriage is considered jointly acquired (that is, both husband and wife have equal rights to dispose of it). At the same time, it does not matter which of them received the loan - both bear equal responsibility for timely payment of bank payments.

The Family Code of the Russian Federation does not regulate civil marriage (simply put, cohabitation), therefore the above rules do not work in the case of a woman and a man living together in the same living space.

If, as part of a trial (property division), one of the common-law spouses wants to prove his “involvement” in mortgage payments, he must provide the judge with the following documents:

bank statements from personal accounts;
receipts, checks.

The most reliable way to protect yourself from problems with the division of property in a mortgage after a divorce is to sign a marriage contract and indicate in advance in this document all the subtleties of the upcoming procedure.

Options for divorce and mortgage division

Selling a mortgaged apartment and subsequent repayment of loan obligations from the proceeds, and then dividing the balance between spouses is the most profitable option, but its implementation is not always possible. There are a number of requirements that must be met:

Coordination of the transaction with the bank that issued the mortgage loan. A financial institution does not always approve the transaction, since it loses a certain percentage in the form of funds. Basically, employees propose the sale of existing real estate and the purchase of separate housing for each spouse with a mortgage from this bank. In this case, the solvency of consumers is taken into account;
It is difficult to find a buyer; as a rule, they refuse to contact the collateral property, so the spouses will have to spend time and resources to find a suitable buyer;
Joint cooperation, in order to avoid disagreements at the time of the transaction, the spouses will need to act together, which is not always possible due to negative emotions towards each other.

In any case, each of the problems can be solved. Read more about selling an apartment with collateral in another article: Selling or buying real estate with collateral - assessing the risks

Another option is the renunciation of one of the spouses’ rights to the mortgaged property. This action allows him to be completely freed from the loan obligation, since responsibility for it is transferred to the second family member in whose favor the refusal was written.

The banking organization recognizes such a decision only if the solvency of the spouse is confirmed, and the other has living space in addition to the property purchased on account of the mortgage.

It is important to know! For re-registration of a mortgage during a divorce, an additional fee may be charged, up to 1 percent of the amount remaining for repayment.

Some credit companies require early repayment of the mortgage; this method is applicable in case of divorce, as it has a number of advantages:

The division of joint property is carried out on the basis of legislation;
Spouses get rid of loan obligations and can live in peace;
Cohabitation is not required to fully fulfill loan obligations to the bank.

This will require joint concerted action to pay off the debt.

There are some factors that influence the process of dividing a residential property taken on a mortgage.

Legal advice

The process of divorce in the presence of a mortgage and children is not easy. To make it easier, lawyers give some tips.

It is important to document every real estate investment. The main goal is to convince the court and the bank of reliability. Then the credit institution, if necessary, can grant a deferred payment, and the court will take into account property interests.
It is worth dividing the loan repayment obligations. If there is a general repayment, then in the absence of payment of one spouse, the second suffers.
It's better to draw up a prenuptial agreement. You can conclude it even after obtaining a mortgage . It will ensure the fulfillment of credit obligations by both parties in the event of a divorce with a mortgage and children.

Division of mortgage if there are minor children in the family

An important issue among citizens is how the mortgage is divided in the event of a divorce with children, since they are under the protection of the state. If there is a child, then in the process his place of residence is determined with the mother, so she is often allocated a large part of the real estate with the expectation of a minor citizen. Responsibility for fulfilling loan obligations to the financial organization is distributed in equal shares between the former spouses.

If the mother provides documentary evidence of her disability, then her payment may be significantly reduced, in this case, compelling reasons and approval from the credit company are required.

Possible options for dividing a mortgaged apartment

During a divorce with children, the division of mortgaged property can be accomplished in several ways.

Spouses can formalize an agreement. It states who will repay the existing loan and in what amount. The shares of spouses and children in living space are also reflected. The banking organization must be notified of the agreement being drawn up, after which the marriage may be dissolved. If there are minor children, then divorce with mortgage and children is possible only in court.
One of the spouses may refuse to pay the mortgage debt. In this case, the spouse is deprived of the right to real estate. The document must be certified by a notary office. The second spouse will pay the loan amount. The refusal comes into effect only after the bank’s approval. A new contract is drawn up, and the old one is canceled. The updated document will include one borrower.
Possible sale of real estate. The procedure is agreed upon with the bank. After the transaction is completed, the amount is deposited towards the debt. The remaining portion is divided equally between the spouses. But if there is no consent from the bank, the collateral cannot be sold during a divorce with a mortgage and children. The notary will not approve such a transaction.
The rules for determining the parts of property may be prescribed in the marriage contract. In this case, the procedure for dividing financial obligations and real estate is simplified.
If it is not possible to reach a common opinion, a court hearing is scheduled. The court makes a decision on determining the procedure for repaying the loan and establishing shares. Each spouse receives a new loan agreement.

Mortgage during divorce if maternity capital is used

The well-known program operating in the Russian Federation to support young families has already become the norm for citizens. Therefore, it is important to understand how division and divorce are carried out with a mortgage with maternity capital. There are two options:

Divide money between spouses after the sale of real estate, the purchase of which used maternity capital;
Division of spouses' real estate without alienation.

In the first case, the debt to the bank is completely repaid to remove the encumbrance, shares are allocated to the children under a notarial obligation, which is kept in the pension fund, and after that the living space is sold. To sell, you must obtain an order from the guardianship and trusteeship authority to authorize the alienation of shares owned by minors. A mandatory aspect is the provision of shares to children in other real estate, and their size must be no less than in the property being sold.

It is important to know! The division of property acquired using maternity capital is carried out strictly with the consent of the guardianship authorities and under the control of the relevant authorities, which ensure the protection of the rights of minor citizens of the country. Shares that should belong to children are not subject to division!

It should be understood that in the absence of proper knowledge in the legal field, it is better to turn to specialists for this section.

Protecting children's rights in a mortgage divorce situation

Any real estate transactions that involve minor children are carried out under the control of the guardianship and trusteeship authorities. They check that the child is not left homeless, and that his living conditions do not worsen.

IMPORTANT

Before selling a mortgaged apartment and getting a divorce, you need to discharge the children. But for this purpose a new place of their residence is determined.

If the apartment is divided, then the parent who took the child with him receives the right to a larger share of the property. But the debt obligations on the loan are established in proportion to this part.

If a minor’s rights to housing are violated during a divorce, the parents may be held accountable. This is provided if maternity capital was attracted at the time of registration of the mortgage. The child will have his share in the property, which cannot be deprived of him.

The court determines the living conditions of the child, as well as the share of each parent. The interests of minors must be taken into account.

For your information

The court may determine equal mortgage payments to the spouses or contributions in proportion to their shares. Some circumstances are taken into account - the woman is on maternity leave, the presence of disability, temporary incapacity for work. They worsen the financial situation of the spouse, which affects the repayment of the loan. If the creditor agrees, the share of payment of the woman with the child can be reduced.

If maternity capital has not been used previously, after a divorce the mother can use it and pay off her part of the debt. But until the husband pays the remaining funds on the mortgage, the apartment will remain pledged.

The court considers each case of divorce with mortgage and children on an individual basis. To protect the interests of children, the rules of equal division may be violated in the following situations.

If a child has limited capabilities, the parent remaining with him/her claims a larger share in the apartment.
If an equal division is contrary to the interests of the children, the court may transfer the property to the parent raising the minors. At the same time, he must pay the cost of the share to the second spouse.
When a marriage of a large family is dissolved and the place of residence of the children is determined with one parent, the share of the second spouse is reduced in accordance with the number of children.
A reduction in the share is possible if one of the spouses remains with the children, and the second has personal housing.

Military mortgage during divorce

This lending is distinguished by a number of conditions, since payment of the obligation is carried out not by the borrower himself, but by the State. Therefore, it has three basic rules:

The contract is concluded only with a military personnel;
The signature and consent of the spouse as a co-borrower will not be required;
The loan amount is limited to 2,350,000 in ruble equivalent;
The military man is the sole owner of the property;
Renewal of the loan agreement is prohibited.

Given these circumstances, the question of who will get the mortgaged apartment during a divorce is very acute between spouses; they face a number of problems during division. Here you will need to go to court to resolve the conflict situation.

It is important to know! Banks often issue military mortgages and require a prenuptial agreement. One of its conditions is that in the event of a divorce, the military personnel will be the sole owner. His family members need to be careful before signing papers.

Unfortunately, in practice, the division of an apartment may drag on indefinitely, so the best solution would be a conditional agreement between the spouses.

Divorce through court if you have common children

Divorce in the presence of children is carried out only through the court. It is carried out in several stages:

Citizens file a claim in court. They attach all documents to it: passports, birth certificates, marriage certificates, mortgage agreement, real estate papers, marriage contract (if any), confirming various circumstances of the certificate.
It is important to determine in advance how alimony will be assigned (a notarial agreement is drawn up) and the division of property will be carried out.
A court hearing is scheduled. If the spouses do not agree with each other’s opinion, the court sets a 3-month period for reconciliation. After this period has expired, the marriage is considered dissolved.
If the spouses agree to divorce, the submitted agreements on alimony and division of property are checked. Makes sure that the rights of minors are not violated.
If there are no problems, a court decision is made. The child’s place of residence is usually determined together with the mother. But if the father does not agree, and the minor himself (after 10 years) has his own opinion, the court takes into account these circumstances.
With the received court decision, you need to contact the registry office to make an entry in the register and obtain a divorce certificate. The document from the court is also presented to the credit institution to establish the procedure for paying off the mortgage.

Division of mortgage issued before marriage

This property is not common property and therefore cannot be divided. Also, when both of them make payments for housing, in the event of their divorce, one of the spouses has the right to file a claim for a refund.

Documentary evidence will be required that he made payments in favor of a banking organization, but is not the owner or co-borrower of the housing. It is better to contact a qualified specialist for help.

A spouse can also apply for reimbursement of expenses incurred for inseparable improvements to the property, but proof of the use of personal funds is required (for example, a donation agreement for funds).

How a mortgage taken out during marriage is divided during a divorce: step-by-step instructions

Parting is inevitable. There are a lot of problems left to solve. For example, how to file for divorce if there is a mortgage? Where to start?

From a visit to the bank. In any loan agreement you can find a clause stating that the debtor must notify the lender about changes in his life. This applies to changing your passport, moving or divorce. If you ignore this provision, the bank may declare early termination of the agreement.

In this particular case, it is necessary to solve the problem of dividing the apartment in a mortgage after a divorce. Can:

pay together, then sell or exchange;
transfer the debt to the husband or wife. A prerequisite is solvency and compliance with bank requirements;
repay the loan ahead of schedule and divide the property without encumbrances;
sell the property if the lender agrees. The debt is repaid with the proceeds, and the husband and wife distribute the remainder among themselves.

All options for how to divide a mortgage during a divorce deserve separate consideration. There are several more typical situations, but we will talk about them later.

Joint repayment

The option where the former spouses jointly pay the balance of the debt is the most preferable for banking structures. Money arrives according to schedule. The credit institution is not interested in who the payer is.

But it is very difficult to implement in practice. Few people manage to maintain friendly relations.

One of the co-borrowers becomes the title

Re-issuance of a mortgage for one spouse during a divorce is not encouraged, but is accepted. If the bank allows this procedure:

the solvency of the new borrower is assessed;
amendments to the loan agreement are being prepared;
adjustments are transferred to the Unified State Register of Real Estate;
The existing burden is removed and a new one is imposed.

The former spouses are left to decide independently, without the participation of the bank, who pays what amount to whom. The former owner may renounce any claims at all, both for square meters and money spent, and demand compensation. Most often, the court comes to the rescue.

Early repayment

You can always pay off your debt early, saving on interest over several years. If a mortgage was taken out during marriage during a divorce, the spouses will have the opportunity to finally separate in the shortest possible time. Has the required amount been deposited into your bank account? The burden is removed.

Next, the former relatives independently (or with the help of lawyers and court arguments) determine who will live in the apartment and under what conditions, and who is entitled to monetary compensation.

Selling an apartment with bank permission

The option is the least acceptable for all parties. Causes:

It is difficult to find someone willing to purchase housing with encumbrances. The procedure becomes even more complicated if the square meters were purchased under the DDU from the developer, and the house has not yet been put into operation;
If a bank is involved in the sale, you can wait months for results. The property is put up for electronic auction. At best, it will be bought at a minimal cost. There is only enough money to pay off the debt to the bank.

How to sell an apartment with a mortgage during a divorce? If the borrower independently found a buyer, the process is as follows:

Two safe deposit boxes are available for rent. One contains money intended for the creditor. In the second - the balance for the seller.
A purchase and sale agreement is concluded. Documents confirming the transfer of ownership are submitted to the Unified State Register of Real Estate. A prerequisite is the preservation of the collateral in favor of the creditor.
After receiving an extract from the Unified State Register of Real Estate, a bank representative takes the money from the first cell and pays off the debt with it. The seller receives a certificate stating that the loan is closed.
The parties to the purchase and sale agreement jointly contact the Unified State Register of Real Estate and submit an application to remove the encumbrance.

Only after this the seller receives his share of the money. Sharing the balance with your ex-spouse is not controlled or regulated by the bank.

There are several other ways to pay your mortgage during a divorce.

Can:

leave the question to chance. Divorce from your wife and an apartment with a mortgage? Nobody pays anything. After 3-6 months, the bank will get tired of waiting and go to court demanding the sale of the collateral. The issue of division will be resolved without the participation of the spouses. They won't get anything;
draw up a marriage contract in advance, according to which the apartment will belong to the title borrower. Divorce doesn't change anything. There is no need to re-register documents, urgently sell real estate, etc.

Was the apartment bought before marriage? Is a mortgage before marriage divided in a divorce? Officially, no, but the other half always has the right to prove through the court that the debt to the bank was repaid from her/his salary.

What to choose from the above is a personal matter for everyone. The situation becomes more complicated if there are children, if part of the debt was repaid using a military or maternity certificate. There may be co-borrowers presenting their rights to real estate, etc. It is often possible to establish the truth through the court after many years of proceedings and mutual accusations.

What about a mortgage loan?

The standard situation is when a loan is taken out for one of the spouses, and the other acts as a co-borrower. In this case, the main borrower is often a man. But a woman, if she acts as a co-borrower, needs to know several important points:

Co-borrowers bear joint responsibility for repaying the debt, i.e. if the ex-husband does not pay the mortgage, then the co-borrower wife must do so. She may be required to pay, including through the court.
If payments are not made on time, this negatively affects the credit histories of all co-borrowers. Additionally, penalties and fines will begin to accrue and the situation will only get worse.
If the debt is overdue, the apartment can be repossessed and sold through auction. Sometimes it can also become the property of the bank, for example, as compensation.
Seizure of collateral does not guarantee relief from debt. The money received from the sale of a home is not always enough to pay off the debt, taking into account all the interest and fines.

It often turns out that the idea of getting a mortgage for your ex-husband was not the right one. But any situation must be resolved and should not be postponed until later. Delay threatens financial losses and other troubles.

If the ex-spouse continues to pay the debt

If the mortgage continues to be regularly repaid at the expense of the ex-husband, then this simplifies the situation a little. But there are a few points to consider:

He has the right to demand half of the amounts paid on the loan. He can do this after full repayment of the debt or during the payment process. If you do not voluntarily pay these amounts, they may be recovered through the courts.
The ex-husband still has to pay mortgage insurance. These costs can also be divided in court.
The fact of not living in the mortgaged apartment does not solve the problem; both of them remain obligated to the bank. At the same time, the ex-spouse has the right to demand money, and not the second half of the mortgaged property. Although he can accept the property, for example, as compensation.

The ideal option is to agree with your ex-husband in advance how the mortgaged apartment and the debt to the bank will be divided. Unfortunately, this is not always possible.

If your ex-spouse does not pay the loan

Often, after a divorce, a situation arises when the borrower husband moves to another home and believes that now all mortgage payments do not concern him. This is an erroneous opinion, but a female co-borrower will have to take into account joint and several liability under the contract.

There are several options for how the problem can be solved:

Repaying debt and collecting money from your ex-spouse through the court. If finances allow, a woman can pay the mortgage on her own. If necessary, as a co-borrower, she can easily find out all the bank details and will be able to make payments without problems. Half of the funds spent can be recovered from the ex-spouse through the court. Moreover, you can offer him the second half of the property as compensation.
Property For Sale. You will need to obtain permission from the bank and agree on the transaction with your ex-spouse. The proceeds must first be used to pay off the debt to the financial institution, and if some part remains after that, then dividing it will not be difficult.
Replacement of the borrower (co-borrower). This option is possible if the credit institution and the ex-spouse agree to it. You can involve someone relative as a new borrower (co-borrower), the main thing is that he agrees and meets the requirements of the financial institution.

You should not wait for the bank to seize the apartment and sell it. It will go cheaper at auction than if sold independently, and often significantly. As a result, the debt to the credit institution will remain and both spouses will lose their real estate.

The property is registered as shared ownership. How does the section work?

Does the extract from the Unified State Register show several owners? Is there a part of it for each? With a shared mortgage, in a divorce, everyone gets what is stated in the documents.

Ideally, an agreement is drawn up. It states who owns which room. The document is registered with regulatory authorities, and personal utility bills are divided. The apartment becomes communal.

The situation becomes more complicated if the apartment was purchased with borrowed money and serves as collateral for the loan. Another problem is the need to allocate shares in kind. In particular, this applies to one-room apartments. In addition, the rooms may have different areas and may not correspond to the officially declared shares.

Negotiations on the issue of how the mortgage is divided during a divorce when most of the real estate is registered in the name of the wife and the husband pays, do not yield results? We'll have to go to court. If the encumbrance has not yet been removed from the property, the bank becomes a third party in the process. He may agree to change the terms of the loan agreement or increase the financing period if the solvency of the former spouses decreases. Cause? It is not profitable to sell shares in an apartment.

But it is not profitable for banks to delve into the details of the family dramas of half of the borrowers. In order not to answer questions about how to exchange an apartment in a mortgage during a divorce, they simply prohibit any transactions with real estate until the last payment is made.

What happens if the ex-spouses cannot reach an agreement?

If the conflict situation drags on and the parties stop paying the loan, then the consequence of this behavior will be the repossession of the apartment by the bank.

3 cases of late or no payment during a calendar year are enough for the bank to have the right to begin the collection procedure. As a result, the housing is withdrawn for sale at auction, and bidding is held. In most cases, the price of mortgaged apartments upon sale is significantly lower than the real market value - it is not profitable for the bank to hold and service the repossessed housing in anticipation of a price increase.

The proceeds are used to pay off all debts. In addition to interest and the balance of the principal amount, all bank expenses for the procedure will be paid from the funds: legal costs, the cost of the auction, related costs, fines for delays, penalties.

How to divide an apartment after a divorce. Step-by-step instructions for the mortgage section

Regardless of which method of dividing the apartment is chosen (joint repayment, transfer of ownership to one of the borrowers, sale), you need to start with a careful study of the loan agreement. If it contains a ban on any actions related to the transfer or division of responsibility, only the court will help solve the problem.

It is important to emphasize that judicial practice on such issues in Russia is ambiguous. Neither the Supreme Court nor the Plenum of the Supreme Court could formulate a single opinion on whether a mortgage is divided in a divorce.

We will consider the option in which the bank is not against a change of owner or title borrower under the mortgage agreement.

The operating principle is as follows:

ex-spouses inform the bank that the contract is either transferred to one of them or divided into two;
An application for refusal of an apartment in a mortgage during a divorce or for division is accepted for consideration. If approved, the security service checks the solvency of the new borrower(s). If it is determined that the available income does not allow repaying the debt in accordance with the schedule, the transaction will be prohibited;
If the bank approves the transaction, the former spouses will have to visit a notary and sign an agreement on the division or allocation of shares. The document must indicate who will repay the loan;
the agreement is transferred to the bank. On its basis, obligations are reissued;
Information is transmitted to the Unified State Register of Real Estate that the owner of the apartment has changed. Adjustments are also made to the mortgage;
an insurance policy is issued.

Next, the spouses must decide who will pay compensation and in what amount. If one of them renounced his share of the apartment in the mortgage during a divorce, he has the right to count on the return of the money that he has already spent on repaying the debt to the bank.

Arbitrage practice

Judicial practice includes various cases of division of property. They differ in special circumstances. The court must pay attention to:

presence of children;
determining their place of residence;
income level;
bank's opinion.

For example, the Lazarevsky District Court of Sochi ruled to exclude the former spouse from the number of borrowers. This is due to the fact that the ex-husband renounced his share in favor of his wife and child by drawing up a written notarial receipt.

The plaintiff also attached payment documents reflecting the sole repayment of the mortgage over four years. The court decided to exclude the spouse from the list of loan debtors and homeowners. He transferred ownership of the property only to the plaintiff.

And the Pervomaisky Court of Omsk in the same situation refused to satisfy the claim. He noted that the plaintiff’s income is not enough to repay the loan. Therefore, joint repayment of the loan and common ownership of property with the ex-husband were determined.

How to draw up an agreement on the division of property

If former spouses do not want to waste time and effort on legal proceedings, they can draw up an agreement at any stage:

on the division of property;
on the determination of shares in the right.

In the first case, any jointly acquired item is transferred into the possession of one of the spouses. The second document determines what share (for example, in an apartment) will belong to the husband or wife.

Important! The agreement can be drawn up at any time: after a divorce or during marriage.

Mandatory conditions for drawing up an agreement on the division of a mortgage after a divorce:

written form. Oral transactions are allowed if the value of the property does not exceed 10 thousand rubles;
certification by a notary;
specific indication of things. The agreement should not contain the phrases: real estate becomes the property of the husband, the rest becomes the property of the wife. If we are talking about an apartment, the address, square footage, floor and other signs are recorded that allow the object to be uniquely identified.

The agreement indicates the date of preparation and the full names of the parties. The entry into force of the agreement can be tied to a specific event, for example, a divorce from a bank mortgage. If there is no exact indication, the agreement is valid from the moment of signing.

Important! The agreement on the division of property is binding on both parties. Are there any violations? The Family Code allows not only to hold the offender accountable, but also to demand compensation from him.

Why is a property division agreement drawn up? There are several reasons:

there is an opportunity not to spend months, years and money on litigation, paying for the services of lawyers and attorneys;
You don’t have to spend significant amounts of money on appraising real estate and other property. If the division is carried out through the court, contacting an appraiser is mandatory;
It is possible to provide split options other than the standard 50/50%.

Important! The law does not allow things to be divided if they were purchased for children, their treatment or education.

Division of children and mortgages in a civil marriage

If the marriage is civil, the spouses do not have any legal obligations to each other. Therefore, at the time of divorce, the mortgage and property remain with the person who has the obligation to repay the loan.

But the second party can initiate a judicial review of the case to allocate a separate share in the real estate. It is important to prove that there are circumstances for such a decision, the fact of investing in property.

Attention

In a divorce with a mortgage and children, paternity determination is carried out to determine the child's place of residence. This is due to the fact that the common-law spouse is not automatically recognized as the father. And if he is not a biological parent, then he will not have rights to the children.

How to challenge a marriage contract? Judicial practice on this issue

In the 21st century, a new concept has appeared in Russia - a marriage contract. Spouses (including future ones) sign a document defining the order of ownership of property, both existing and those that will be acquired.

Important! The marriage contract can also include other issues, for example, those related to payment of child support, maintenance of the wife during maternity leave, division of apartments, etc. A sample marriage contract before a divorce over a mortgage can be requested from a notary.

If clauses that do not relate to the property complex are included in the agreement, they will be considered void. The same applies to the relationship between parents and children. If you indicate that each parent is obliged to walk with their son for at least 3 hours a day, both parties may initially not comply with this clause. He is insignificant.

The legislation of the Russian Federation allows you to challenge a marriage contract. This is possible if:

the document was endorsed while under the influence of alcohol or drugs, under the influence of medications, etc.;
the contract is signed by a person with limited legal capacity, but his guardian was not present during the procedure;
one of the parties was forced to sign the agreement by deception, misled. The husband/wife does not know what property we are talking about, does not know what the other half is planning;
The spouse was forced to enter into an agreement through blackmail and pressure. It doesn't matter who the source of the threats was;
the agreement is enslaving for one of the parties, depriving them of the opportunity to use property and money.

To challenge an agreement, you must:

make sure that there are grounds for going to court. I did not know the abstracts; I am no longer satisfied with such an agreement; they will not be accepted for consideration. The party wishing to appeal the contract will have to prove that its rights have been violated;
draw up a statement of claim. It must indicate who is going to court and for what reason, and state the circumstances of the case. References to violated legal norms are required;
collect evidence that the contract violates the rights of one of the parties;
pay the state fee;
apply to the court. In the standard version, the case should be heard by the court at the place of residence or stay of the defendant. Other options - if there are compelling reasons, for example, serious illness, etc.;
attend court hearings, state your position, present evidence;
obtain a court decision.

Important! The judge may refuse to satisfy the requirements or declare the contract invalid in whole or in part.

A prenuptial agreement can also be challenged after a divorce. The main thing is not to miss the statute of limitations - 1 (one) year from the moment the ex-spouse found out (should have known) that their rights were violated.

Judicial practice regarding the invalidation of a marriage contract is very ambiguous. This is due to several reasons:

it is difficult to prove the presence of alcohol intoxication after years, the presence of pressure, if there are no witnesses;
the statute of limitations is missed without good reason.

The initiators of termination or invalidation of a marriage contract are mainly wives. The main reason is that the husband wastes the family property and sells it without taking into account the interests of the family, including children. In most cases, such claims are satisfied by the courts.

If there is a marriage contract

The procedure for divorce with a mortgage and children is simplified if there is a prenuptial agreement. But it is important that it reflects in detail the principles and rules for dividing a mortgage loan and real estate. The document must be certified by a notary and drawn up in accordance with Article 41 of the RF IC.

A marriage contract can be drawn up:

before marriage;
in marital relations;
before applying for a loan;
after receiving a loan and purchasing real estate.

In the latter case, the credit institution is notified about the preparation of the document.

Banks themselves often put forward the requirement to draw up a loan agreement before issuing a mortgage. This is provided for:

the presence of a bad credit history of one of the borrowers;
obtaining a large mortgage loan in the name of the husband/wife;
lack of official income for one of the parties.

In accordance with Article 46 of the RF IC, citizens are required to notify the creditor about all changes to the marriage contract.

For your information

The prenuptial agreement may spell out possible solutions in the event of a divorce involving a mortgage and children. The second spouse can refuse claims and division of the apartment. All property, as well as obligations to pay the debt, are transferred to the first.

Who pays the mortgage after divorce?

According to the law, spouses jointly pay the bank. An exception is made if there is a prenuptial agreement with clearly defined criteria for real estate ownership.

Divorced spouses and an apartment with a mortgage? Possible situations:

nothing changes, but if the title borrower for various reasons avoids fulfilling his obligations, the bank demands money from the co-borrower;
ex-spouses share both rooms and obligations. Everyone pays their share. Husband won't pay mortgage after divorce? The bank will foreclose on his share;
one of the co-borrowers waives his obligations and rights to the property. Everything is transferred to the second one.

The mortgage was not divided after the divorce. One of the spouses pays. How to be

Husband refuses to comply with the payment schedule? The wife can:

ask to sign an agreement on the division of property. It states that a person who does not want to give anything to the bank renounces his claims to this housing;
pay off the debt yourself. After the divorce, I pay the mortgage alone. How to collect funds from the second half? This question is one of the most popular on lawyer websites. The answer is to go to court to recover part of the payments.

Important! In the second case, we must not forget about the statute of limitations - 3 (three) years. Basis - clause 7 of Art. 38 RF IC. The countdown does not start from the moment of divorce or closing of the debt to the bank. Every single payment is taken into account.

Divorce with children and a mortgage taken out during marriage

When taking out a mortgage loan at the time of the official marriage relationship, the property becomes common property. Its division is carried out on the basis of paragraphs 1-3 of Article 38 of the RF IC. When divorcing with children and a mortgage taken out during marriage, there are several possible solutions:

The apartment can be sold. The funds received are transferred to the bank to pay off the debt. The remaining money is divided between husband and wife. Banks often refuse this procedure so as not to lose interest on early repayment. Therefore, you need to negotiate with a credit institution with the support of lawyers.
The loan agreement may stipulate individual conditions for each party. Then, in the event of a divorce with a mortgage and children, the order of payments does not change. Ex-husband and wife who act as co-borrowers remain bound by the common loan and have joint liability. If such a clause is in the contract, then the institution has the right to independently decide to whom to make claims in case of non-payment. The situation can be resolved by signing an individual agreement reflecting the obligations of each subject.
The loan can be reissued for one citizen (clauses 1, 2 of Article 391 of the Civil Code of the Russian Federation). This is provided if the bank agrees to the procedure, and the husband/wife pays a certain amount to the second spouse. The housing remains the property of the person who makes the payments.

The place of residence of children is determined on the basis of a court decision. Only the court can determine which parent the child will remain with. Various circumstances are taken into account, including the presence of conditions created for the minor to live. The child's own opinion may also be taken into account.

How to get rid of a mortgage after divorce

The marriage broke up, but the obligations to the bank remained. How to divide an apartment with a mortgage after a divorce?

No prenuptial agreement? A military certificate was not used for payment? Former relatives are equally liable to the bank for debts. Changes in marital status are not taken into account.

If at a certain stage one of the spouses realizes that he cannot continue to pay significant amounts, he retains the right to refuse the mortgage in favor of the co-borrower.

The re-registration procedure will be the same:

An application for debt transfer is submitted to the bank. Documents confirming insolvency, loss of work or health must be attached. The consent of the second co-borrower will also be required. If he refuses to accept obligations, the problem will have to be resolved through the courts.
The bank studies the situation and checks the solvency of the person accepting the debt. If the deal is approved, you can move on to the next stage.
The notary certifies the agreement on the division of property. It indicates who wants to get out of the mortgage after a divorce. Was a significant part of the cost of the apartment paid through joint funds? The compensation due to the one who refuses is calculated.
The documents are sent to the bank. It is important to understand that the assessment will be re-carried out and the insurance contract will have to be renegotiated. And these are additional costs.
The loan and mortgage agreements are re-signed. Information about the change of owner is transferred to the Unified State Register of Real Estate for registration.

Important! The renounced spouse can consider himself free from obligations only after receiving an extract from the Unified State Register of Real Estate. Next, he needs to receive compensation from his former other half, if this is provided for in the agreement.

How to refuse a mortgage during a divorce if no one wants to pay rent in the future? Contact the lender and request permission to sell square meters. Got a refusal? Are the arguments and evidence of insolvency not accepted by the bank for consideration? You will have to go to court with a claim for early termination of the loan agreement.

Process Features

If one of the spouses received a mortgage loan for an apartment before marriage, and subsequently repaid it together, the other has the right to demand the return of funds spent from the common budget. In such a situation, after marriage, it is necessary to inform the bank about this point in order to register another family member as a guarantor. If there is no mutual agreement on the division of the apartment, then the best option would be to conclude a marriage contract.

To confirm the division of property upon divorce, you must notify the bank that issued the mortgage. If you need to sell your apartment, you will have to make mortgage payments every month.

Therefore, if you get a divorce during a mortgage, then the following options are available:

continue to pay off the mortgage together;
with the consent of the bank, sell the apartment and divide the proceeds;
borrow the amount necessary to pay the mortgage, and after selling the apartment, divide the money received for it.

How to share a mortgage with a relative co-borrower

A co-borrower is an almost obligatory participant in the loan agreement. Formally, it is needed to increase the credit limit. In reality, banks need an additional person from whom they can demand money if the main borrower turns out to be financially insolvent.

Important! Just having the status of a co-borrower does not give the latter the right to claim ownership of part of the real estate. The exception is husband/wife. They become unconditional co-owners, regardless of who signed the agreement.

The main borrower does not pay, does not fulfill his obligations? The bank automatically begins to demand money from the co-borrower. No co-borrowers? Attention turns to the guarantors, but in the presence of a court decision.

Did the co-borrower contribute money towards the agreement? He has the right to collect them from the main borrower by going to court and attaching copies of payment documents.

Important! The judge will definitely take into account the rights of the co-borrower to the property and the nature of the relationship between the parties to the transaction.

It is in the interests of the co-borrower to formalize his rights to real estate in the form of a document or annex to the loan agreement under various circumstances. This applies to relatives, friends, and work colleagues. Over 10-15-20 years, relationships even between the closest people can deteriorate.

Another important point is if a co-borrower on a mortgage leaves the deal during a divorce. Just desire is not enough for this. The lender and title borrower must agree to the decision. Is anyone against it? Only the court will help.

Do I need to notify the bank about a divorce?

Notification of the bank about the upcoming divorce with a mortgage and children is mandatory (Federal Law No. 102 of July 16, 1998 “On mortgages (real estate pledge)”). Depending on the circumstances, several interaction options are provided:

payment of the mortgage on the same terms with notification to the bank;
division of property and debt obligations, which may be disadvantageous to the bank (if there is a court decision, the bank’s consent is not required);
refusal of the share of one of the co-borrowers in accordance with Part 1 of Art. 39 of the Civil Procedure Code of the Russian Federation (the bank’s consent is required, a new loan agreement is drawn up);
one-time payment of the debt by both spouses with further division of property;
termination of the loan agreement with the consent of the bank.

In what situations is the division of a mortgage possible only through the court?

In Russia, judicial practice regarding divorce and apartments with a mortgage has not yet developed. But claims are already coming.

The most common reasons:

part of the debt is repaid by a co-borrower who is not a family member. He wants to get either his money from the title borrower or a share;
the husband wants to sell the collateral, the wife is against it, but she also doesn’t want to pay on her own;
the spouse believes that the provisions of the marriage contract defining the procedure for owning an apartment or private house should be declared invalid;
there is reason to believe that the 50/50% principle should be violated in a particular case.

There are many reasons to go to court. This is any situation related to the division of property if it is not possible to reach an agreement peacefully.

Important! To prevent your application from being rejected due to formal circumstances, you must fill it out correctly.

The following must be indicated:

information about the plaintiff and defendant;
circumstances of the case. If we are talking about a division, the address of the property and footage are written down. Are there special circumstances? This is reflected in the statement.

Statement of claim for divorce with minor children and mortgage

The claim for divorce is drawn up in writing. It is important to include information in the three main parts of the application.

The header reflects the name of the judicial authority, personal and contact information of the plaintiff and defendant.
The descriptive part describes the circumstances of the case in detail. It reflects where and when the relationship was registered, how many children there are, the moment when the marriage broke up, and the reasons for the dissolution. It must be noted whether there are any property claims or issues of determining the place of residence of children. All circumstances are given with reference to legislative norms.
The operative part formulates the requirements. The attached documents are written down. At the end there is a date and signature of the plaintiff.

An example of a statement of claim for divorce with minor children and a mortgage is available.

How to divide an apartment with a military mortgage during a divorce

To solve the problem of providing military personnel with housing, the state introduced military certificates. A lieutenant, captain or major, having served 20 years, can count on receiving an amount of 2,268,456 rubles. Money is not issued in cash. The purpose of financing is the purchase of residential real estate.

Differences between a military mortgage and the standard version:

The loan agreement is tripartite. It is signed by the borrower, a representative of the bank and Rosvoenipoteka;
sale of an apartment, exchange, allocation of shares is impossible until the deposit is removed. Divorce? The wife has no rights to the property. We'll talk about a small exception below;
the spouse does not become a co-borrower and is in no way responsible for her husband’s debts;
The borrower cannot under any circumstances transfer the debt to another person.

There is no clear answer to the question of what to do when an apartment is mortgaged during a divorce, if the Ministry of Defense is the mortgagee. Neither the court nor an appeal to the conscience of the owner of square meters will help.

The only way for the other half to get part of the living space is to prove that their money was invested in the purchase. This may be a down payment from savings or an inheritance received. The likelihood of division also increases in a situation where the cost of living space significantly exceeds the amount allocated by the Ministry of Defense.

The only exception is the return of personal money paid for square meters in the event of a divorce with a mortgage. Did the wife have pre-marital savings? She has the right to get them back. The main thing is the presence of evidence.

Is a military mortgage divided in a divorce? Yes, you will first have to pay the bank in full and make sure that the housing costs at least 2,300,000 rubles.

Advice from a lawyer on divorce with a mortgage and a child

The courts annually consider hundreds and thousands of claims regarding violations of the rights of minors during the sale of housing. Pundits write dissertations on the topic - Divorce in the presence of children and a mortgage. In practice, it is very difficult to divide an apartment that is the subject of collateral if children live in it.

If you follow the letter of the law, parents do not have the right to worsen the situation of their children. The child retains the right to live in a room belonging to both the mother and the father. Grounds - clause 1 of Art. 55 and paragraph 1 of Art. 63 RF IC.

Important! Just the presence of children is not a reason to demand the division of real estate in a proportion other than 50/50.

Changes are possible if both parents want it or the law requires it. If maternity capital is used to repay a mortgage loan, each of the children is allocated a mandatory share. It can be added to the share of one of the parents. The problem is that this can only be done after the encumbrance is removed.

In order not to spend years on a divorce when the apartment is on a mortgage and there are two children, lawyers advise stipulating the terms of use of the property in advance and doing this in document format rather than verbal agreements. Don't have enough personal knowledge to check the information in the document? Contact a lawyer specializing in family and divorce cases.

Is it possible to get divorced with a mortgage and children?

If the spouses decide to divorce, they have the right to do so. But it is important to take into account the presence of jointly acquired property. Its division is carried out on the basis of the Family Code of the Russian Federation.

Attention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call Moscow; Saint Petersburg; Free call for all of Russia.

Attention

In accordance with paragraph 1 of Article 39 of the RF IC, both real estate and debt obligations on them are divided between husband and wife in equal shares.

The difficulty is that the mortgaged apartment is pledged to the bank. In this case, you will need to coordinate the procedure with the credit institution in order to carry out the division with minimal moral costs.

The division is carried out with mandatory notification to the credit institution. This rule is reflected in Federal Law No. 102 of July 16, 1998 “On mortgage (real estate pledge).” If the allocation of shares is carried out through the court, the judge is guided by the wishes of the bank.

Divorce from a mortgage if you have children is possible, but only through the court. Based on the claims of the parties, the place of residence of the minor, the procedure for communication, and the payment of alimony will be determined. The existence of ownership rights in mortgaged real estate is determined separately if, for example, it was acquired using maternity capital funds.

Conclusion

Divorce due to an unpaid mortgage is a serious process that requires legal and financial literacy. If spouses have doubts that they will be able to cope with this task on their own, then it is better to carry out activities together with a lawyer. It is important to understand that a mortgage is a responsibility that must be fulfilled without fail.

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Author:

Maria Yurievna Sokhan

Date of publicationJuly 28, 2018July 31, 2019