Agreement on the division of a mortgaged apartment between spouses (sample) 2021

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Divorce in our time is not as rare as we would like. Most often, divorce occurs without major difficulties; they begin later, when the division of property begins, especially if this property is a mortgaged apartment.

In such a situation, an agreement on the division of a mortgaged apartment can come to the rescue, of course, if the relationship between the former spouses is not heated to the limit, and they are able to come to an agreement peacefully.

How to correctly draw up an agreement on the division of an apartment with a mortgage

In accordance with Art. 33 of the RF IC, all property acquired by a married couple is their joint property and belongs to them in equal shares. This applies to both property and debts, such as a mortgage. The exception is property relations defined in a marriage contract or other written agreement. In this case, in order to allocate the shares of each spouse, a special document is drawn up.

For the division of residential premises under a mortgage, there are several features, namely:

it must be certified by a notary office;
The document must indicate complete and accurate information about the parties to the agreement, as well as details of the marriage certificate and its dissolution.

In addition, the document must contain detailed information about the mortgaged apartment: its address, cadastral number, total and living area, how many rooms are in the residential premises, on what floor it is located and in what type of building.

It is also necessary to indicate the details of all title documents (certificate of ownership). In cases with a mortgaged apartment, when it is pledged to a credit institution until the debt is fully repaid, the spouses may not yet have a certificate of ownership of the residential premises.

In such cases, the number and date of the loan agreement, as well as details of the real estate purchase and sale agreement, are indicated.

The share of each spouse is determined in accordance with their agreements; most often it is determined by the contribution of each spouse to the purchase, as well as by the fact with whom the minor children remain to live after the divorce.

If the mortgage loan has not yet been repaid, usually all loan obligations in the agreement are distributed according to the shares received after the division, or, if the shares are not determined, then the debt, like the living space, is divided equally.

When can you enter into an agreement?

Spouses decide for themselves whether to draw up a separation agreement or not, and at what point to do so. The legislation allows the conclusion of a division agreement:

in the process of family relationships;
in parallel with the divorce process;
after divorce.

Drawing up a division agreement before young people have started a family is excluded due to the fact that before marriage they cannot have joint property and simply have nothing to share.

In such situations, when the marriage has not yet been concluded, but the future spouses are not entirely sure of its strength and durability, it would be more advisable to conclude a prenuptial agreement, in which you can determine how the couple will dispose of the property that they plan to acquire in the event of a divorce.

There is no need to confuse the agreement, which is concluded between spouses voluntarily and can be drawn up independently at any time, from a settlement agreement on the division of property. The latter is always the result of consideration of the division of joint property and debts in court, is drawn up during the process and the spouses only sign it.

How the agreement is concluded

The document must be drawn up in writing, either independently or with the help of a lawyer, and must contain the signatures of both spouses as confirmation that each of them agrees to the terms of the division set out in the document.

It is advisable to seek help from a lawyer, since a legally illiterate document that does not contain factually and legally correct information, which does not reflect the legal consequences of failure to comply with its terms, will not have legal force.

Do I need to contact a notary?

Until 2021, legislation did not require mandatory certification of an agreement by a notary, but on December 20, 2016, amendments were adopted to the Family Code, according to which notarial consent when drawing up a document is mandatory.

What property should be included in the agreement?

The list of things to be divided during a divorce is determined by each married couple independently. Some can only indicate real estate or an expensive vehicle, others indicate pieces of furniture, antiques, other property, including household appliances; here the legislation does not limit citizens.

But, in any case, each name of the specified property must have its full description:

Name;
size and color;
if available, make or model;
features;
for real estate - address;
for a vehicle – registration number;
approximate cost of each item.

If the residential premises are mortgaged, indicate the cost of the loan, the date of its repayment, to whom and in what share it goes to during division, who will have to pay the balance of the debt after division.

For example, a couple took out a mortgage on an apartment worth three million rubles, and after purchasing the property they had a child. The spouses made an agreement that when dividing the living space, the husband gets one of the rooms, in which in the event of a divorce he will remain to live, but in return he takes upon himself to pay the balance of the mortgage debt.

There are two options for drawing up an agreement:

About the division of property . Any joint property can be indicated here, even pots and kettles.
About the allocation of shares . In this case, the procedure for dividing any property into shares is specified; most often, residential premises, vehicles, joint businesses, etc. are divided this way.

It must be borne in mind that the agreement cannot indicate the personal belongings of each spouse, for example, those given as a gift to one of them, inherited or acquired before marriage. Even if, through intent or ignorance, the personal property of the husband or wife is included in the agreement, its owner can dispute this fact and demand in court the return of the property belonging to him.

Contents of the agreement

The legislation does not define a strict form for drawing up an agreement on the division of property or debts of spouses; it is filled out in any form, but there are still certain requirements for filling out the document. The agreement must include:

Preamble to the document . The date and place of its preparation, as well as personal information about the parties to the agreement should be indicated here.
Subject of the agreement . In this section, the spouses must indicate in what relationship they are at the time of conclusion of the agreement (married, divorced, or the marriage has already been dissolved), and also refer to a document confirming this relationship. Then there should be a list of all the names of property and debt obligations that the spouses want to divide.
Section order . How exactly is the division of property and mortgage debt planned: which spouse gets certain items, or in what shares they should be divided, as well as who and in what amount should repay debt obligations to the bank.
Procedure for transfer of property . This paragraph is not mandatory, but if the couple decided to make an entry in the document, then it should indicate how and during what time this or that property is transferred to each of the opponents; if the transfer of property requires its re-registration, then how it should be produced.
List of personal property . Indicated if the husband or wife has personal property that should not be divided, for example, a vehicle given to the husband or expensive jewelry inherited by the wife.
When the agreement comes into force . Not required to be filled out. If specific deadlines are not specified, the document comes into force immediately after its signing.
Liability in case of violation of the terms of the agreement.
Conclusion . The number of copies and storage location for each of them should be indicated here. Usually the agreement is drawn up in three copies: one for the spouses and the third for the notary. This part also specifies the procedure for resolving controversial issues if any arise, as well as how changes can be made if such a need arises.
Signatures . If the document does not contain the signature of either party, the agreement will not be valid. In addition to the signature itself, it is advisable to enter your last name and initials in your own hand.

When is an agreement necessary?

Usually the issue of property division arises during or immediately after a divorce, and most often this is where the first difficulties arise. In reality, dividing real estate is difficult, and in cases of dividing a mortgaged apartment, the problems increase many times over.

For example, former spouses have a mortgage on a one-room apartment. It will not be possible to divide it into shares, which means it will be impossible to divide the loan taken for its purchase. But if a separation agreement is concluded, the former spouses may come to some kind of compromise.

It is also difficult to divide the loan itself, even if the property can be divided into shares between spouses, for example, if they have a mortgage on a house that can be redeveloped by dividing it into two parts. A credit institution, of course, can accommodate the former spouses, but only if it is sure that each of them is sufficiently financially secure, and the bank will not have problems receiving loan amounts in the future.

In such cases, a way out of this situation may also be an agreement on the division of both real estate and loan obligations, since in this case the ex-husband and wife may not contact the bank at all, but come to an agreement on their own.

For example, a married couple purchased an apartment with a mortgage while married, paid off the loan jointly for several years, and then divorced. After the divorce, they drew up an agreement in which they indicated that they would continue to repay the loan jointly in equal payments, and after paying off the mortgage, they would sell the residential premises and divide the funds received after the sale equally. In addition, they decided that until the residential premises were sold, a wife and a minor child would live in it.

Rules for dividing mortgage property between spouses

In accordance with the Family Code of the Russian Federation, spouses have equal rights to property acquired during marriage. The only exceptions are those objects that are specified in the marriage contract. Real estate purchased with a mortgage loan is also joint property to which spouses have equal rights.

During a divorce, dividing mortgaged property can be quite difficult due to the fact that the housing is under an encumbrance, so the bank, for its part, has the right to impose certain restrictions on the collateral:

Neither spouse can sell or exchange real estate without the permission of the creditor
the apartment cannot be pledged to another bank until the current debt is fully repaid
redevelopment cannot be carried out in the room

The procedure for allocating shares in mortgaged property during a divorce largely depends on the position of the credit institution. For example, the bank may require early repayment of the debt. However, when the case is brought to court, a decision may be made in favor of the borrower. Often, judicial authorities oblige the lender to reissue the mortgage or sell the property.

The solution to the issue of dividing the collateral property primarily depends on the terms of the mortgage agreement. Also, on the basis of this document, the legal successor of the debt is subsequently determined.

It is possible to divide the mortgaged property only if the apartment has several rooms. Premises with a small area are not subject to division.

Upon receipt of the bank's consent, the borrower has two options for changing the mortgage terms:

Distribute the remaining debt in proportion to equity participation.
Remove one of the spouses from the list of co-borrowers and deprive him of the right to real estate.

When redistributing a debt obligation, the credit institution will check the solvency of each borrower again. If the income level of one of the spouses is insufficient to obtain a mortgage loan, then the revision of the current contract will be refused.

The situation when, due to divorce, spouses divide joint property is quite risky. If one shareholder is unable to fulfill his obligations under the loan agreement, the premises may be put up for sale, and then the second spouse will also lose not only his share, but also the funds invested in it.

The renunciation of his share in favor of the second spouse occurs on the basis of a notarized document, however, in order for the bank to accept such changes, the borrower must meet the requirements of the financial institution.

In practice, spouses who file for divorce most often decide to sell joint property with a further division of funds. However, such a procedure can only be carried out with the consent of the bank. It is at this stage that a number of difficulties arise:

An individual who agrees to purchase a mortgaged property will have to pay off the balance of the debt and wait for the encumbrance on the property to be removed.
Due to the difficult status of the apartment being sold, the seller will have to significantly reduce its price.

Analyzing the above, we can conclude that the process of dividing property purchased with a mortgage is quite complex. If we consider the problem from the point of view of expediency, then regardless of the chosen option, in any case you need to be prepared for certain financial losses.

Price

Notarization of the agreement is not free; you will have to pay 0.5% of the amount at which the husband and wife value the property included in the document. At any transaction price, the cost of the service will be at least 300, but not higher than 20 thousand rubles.

It is advisable to seek the help of a lawyer to draw up an agreement in order to eliminate mistakes and agreements that contradict the law between spouses. In this way, you can protect yourself from possible violations or abuses by your opponent.

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