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

Who is considered the rightful owner of housing for military personnel and what share will go to members of the once strong family in the event of a divorce? How to receive compensation for personal expenses incurred when purchasing or operating an apartment?

When it comes to the division of residential real estate acquired by military personnel under the savings-mortgage system (NIS) program, some provisions of the Family Code cease to apply. The program has been in effect since 2005 and creates many legal precedents.

The main problem for the ex-wife is registering ownership of the military man as the sole owner. He receives an apartment on preferential terms and independently fulfills the obligations associated with the mortgage program. The wife does not participate in this process.

Is it possible to divide the living space?

According to the law (), any of the spouses can demand their share in the living space acquired at the time of marriage. But, despite the direct indication in the law, the division of an apartment under a military mortgage during a divorce is at odds with the usual procedure (if the loan were issued by a civilian).

Some of these differences are referred to. And it says that funds provided for certain purposes are not divided among family members. Considering that financing from the NIS is used exclusively for the purchase of residential space, they are targeted (). Therefore, dividing an apartment using a military mortgage is legal if:

1. In the process of settlement with the financial organization, part of the family savings received not from state funds was invested;
2. The wife's personal money was used to pay for the loan (a gift from friends or colleagues, an inheritance, etc.);
3. At the expense of the party claiming ownership rights, improvements were made to living conditions;
4. The spouse with whom the agreement was made to provide the money resigned, after which the loan was repaid jointly.

In fact, you can get yours after closing the loan. Until this moment, the object is collateral for the loan. If the above conditions are met, an apartment on a military mortgage can be divided during a divorce, but the shares are determined in proportion to the funds invested in it.

How is an apartment purchased with a military mortgage divided during a divorce?

Targeted housing loan – fixed amount. Its size cannot exceed 2.4 million rubles. In order to fully pay off the mortgage, a serviceman has to insure himself and the property he is purchasing, and spend money on bank commissions. And apartments are constantly rising in price. Their cost greatly depends on the region. Often the allocated money is not enough and you have to invest your own money.

Money invested in excess of the value calculated by the state is compensated to citizens. However, you can only claim a part of them equal to 50%. They just won’t take your word for it. The validity of the claims must be proven.

You will have to provide:

• payment receipts;
• bank receipts confirming the transfer of funds;
• evidence of payment for insurance contracts.

The cost of housing during operation increases not only due to the natural price growth of real estate, but also due to repairs and reconstructions carried out by citizens. According to Article 37 of the Family Code, funds invested in this way are also returned.

However, payment receipts will not be enough to confirm the work performed. More serious evidence will be required - a permit issued by the inventory bureau. The work carried out is coordinated with the financial organization that issued the mortgage agreement.

When it is impossible to share housing

Situations when such a measure is not allowed follow from the rules listed above. It turns out that the procedure is impossible if:

• the loan has not yet been repaid;
• the second spouse did not invest money;
• the loan was paid only from NIS funds;
• The soldier is still on duty.

It will not be possible to divide housing in other cases provided for by law. To complete the picture, it is worth taking into account the nuances of this process, which specifically highlight lending to military personnel.

Features of the section and differences between such a mortgage and a regular one

It is important to know such nuances and be able to operate with them. In order to correctly divide an apartment during a divorce on a military mortgage, you need to understand what differences exist in this type of lending. These are the features of the procedure.

1. Considering that the state allocates preferential finance for the purchase of square meters, until the loan is repaid, they are pledged not only to the bank (), but also to government agencies (). This means that it is impossible to divide them without their permission.
2. In the event of a divorce, you will have to notify the financial institution and Rosvoenipoteka about the decision made. Any subsequent action with the object of pledge is carried out with their consent.
3. It is not allowed to have a co-borrower under a loan agreement - money is issued only to a military personnel. Therefore, in the event of dividing an apartment purchased with a military mortgage, you will have to go to court to defend your rights to the property.
4. If the housing has been divided before all loan payments have been made, the serviceman has the right to file a claim for division of loan obligations in part of the remaining amount.

Compared to a regular loan for the purchase of living space, its military version involves more restrictions. This is due to the provision of financial benefits by the state. And the party to whom the loan agreement is drawn up has more rights.

How to divide housing under a military mortgage according to the law?

An NIS participant acquires the actual right to own housing only after full repayment of its cost . When controversial property issues arise during a divorce, the matter is usually heard in court.

It is worth mentioning right away that it is almost impossible to win a court case regarding the division of such property : the law provides for only one owner of housing purchased with a military mortgage - this is the serviceman himself who took out the mortgage.

there are still legal reasons for dividing such property during a divorce .

Your loan has been approved!

• The loan amount for a military mortgage is limited - in 2014 it was just over 2,300,000 rubles. Considering that it is almost impossible to purchase a spacious apartment for that kind of money (especially housing in a metropolis), real estate is often purchased whose cost exceeds the housing price. The law does not prohibit investing personal savings, and personal savings, in turn, are the family budget. That is, jointly acquired property. From which it follows that the spouse of a serviceman who invested his savings in the purchase of housing using a military mortgage also has the right to part of the housing.
• If a serviceman resigns, he is forced to pay the mortgage and interest on his own (the state helps with mortgage payments only to active military personnel). In the case where the spouse helps the military man pay monthly payments and interest, she also has the right to go to court. True, even if the court decision is positive in favor of the wife, she will only be entitled to monetary compensation.
• When selling housing by an NIS participant after the encumbrance is removed, the income received from the sale becomes jointly acquired property . That is, during a divorce, the spouse has the right to sue and present her property claims.
• Funds received from any persons (except for special purpose funds) and additionally invested in housing under a military mortgage are considered jointly acquired property. Even if these funds were lent by the borrower’s mother (aunt, friend, etc.). Accordingly, part of the apartment in the amount of these additional investments is also jointly acquired property and, of course, is subject to division. An exception is if the funds transferred by a 3rd party were executed under a gift agreement. In this case, the donated funds are not considered joint property, and the apartment is not subject to division.

What can a spouse count on?

By law, this party to the dispute has equal rights with the husband, but this rule applies to standard marital unions. When it comes to marrying a military person, slightly different rules apply. If during a divorce the military mortgage is shared with the wife, several options for the development of the situation are allowed:

• the apartment remains only for the husband or wife (usually a military man);
• the second spouse can pay compensation to the first for real estate;
• the housing is re-registered as shared ownership (if the loan has been repaid);
• the cost of living space is taken into account when calculating the price of the remaining property.

All this is possible with a voluntary solution to the problem. When friction arises, it is worth considering the rights of each party. Former spouses have the rights:

• division of property that is recognized as joint;
• living in the same area with her ex-husband.

The second situation is allowed if the spouse is looking for her own housing after a divorce. If she does not have a share in the object of the dispute, the serviceman can write her out when the divorce procedure is completed. The remaining rights of a wife under a military mortgage during a divorce are similar to those of the parties in a regular union (where the husband is a civilian). Although there are nuances in situations where the loan has already been repaid.

Permitted methods of dividing property under a military mortgage

According to Article 60 of the Family Code of the Russian Federation, children do not participate in the division of property. Infancy does not give them such a right. Everything acquired in a marriage is divided between the wife and husband. Everyone gets 50%. According to the law, jointly acquired property is subject to division between former spouses.

This includes:

• Income received from any legal activity.
• Loans whose terms do not imply specific spending purposes.
• Property purchased during marriage. If the property was purchased previously, it is not regarded as jointly acquired, except in cases of investment by each of the parties, due to which the market value of the apartments increases (renovations).
• Items given or received for free.

Personal items other than jewelry, such as clothing items, are not included in this list. If one spouse did not earn money because he ran the household and looked after the children, he still claims half of what he earned during the marriage.

How to divide living space after repaying the loan

This option is the simplest of all. But when trying to determine whether an apartment is divided under a military mortgage, you must first take into account whether the borrower has paid off his debt obligations. If the calculation is made, you must:

• remove the encumbrance;
• register rights;
• divide the property into shares.

When you have a young child, you can register the apartment in his name by signing a gift agreement. The wife will remain in this living space with the baby, paying compensation to her husband. Its size is determined based on the state benefit, through which this housing was purchased.

Or an apartment with a military mortgage after a divorce is divided according to a previously drawn up agreement between family members. If a controversial situation arises or you need to determine the size of shares, taking into account the invested finances of each party, you will have to order an examination and go to court. However, even this case is simpler than division at the time of loan repayment.

Division of living space when it is collateral for a loan

While the property remains pledged, the apartment can only be divided under a military mortgage through payment of compensation. The spouse will not own the home, but will return the money invested in its purchase or renovation. Do not forget about the presence of a third party - the bank that financed the purchase. Any actions with property are permitted with his permission.

When it comes to court proceedings, the creditor will be involved in the case as a third party. Although many financial organizations have already specified in the contract how the apartment is divided under a military mortgage. If such instructions are available, simply follow them to avoid difficulties.

The serviceman will pay off the remaining debt when the marriage is dissolved. But he can apply to the court for the division of this amount with his ex-wife. Compensation will also be required in a situation where the lender requires you to deposit the remaining funds before the end of the loan term. Additional difficulties arise if you have young children and pay part of the loan. capital.

What to do if part of the funds was contributed using the maternal certificate

Initially, only the military man is recognized as the sole owner after the division of the apartment received under a military mortgage, even if it was paid for with mat. capital. But in practice it becomes clear that it is possible to share housing. The courts have already made relevant decisions, and the Constitutional Court has given appropriate explanations.

Information. The obligation to register real estate as shared ownership when using maternity capital to pay for it is specified in Decree of the Government of the Russian Federation of May 25, 2021 No. 627.

The outcome of the proceedings depends on the situation. The following features will have to be taken into account:

• whether the loan is closed;
• how it was repaid;
• the presence of the defendant in the service, etc.

In any case, dividing an apartment on a military mortgage with children is complicated. If the outcome is favorable, the spouses agree to re-register the property for the child. Or children are allocated a share in proportion to the amount of mat. capital.

If you used your own funds to purchase the property

This happens often, given the limited amount of funds issued under the target program. The limit on the amount provided to a military personnel is limited to 2,400,000 rubles. To acquire decent housing and apply for a loan for a higher amount, spouses use their savings, salary or other funds.

If this happens, the division of an apartment purchased with a military mortgage is simplified. It is necessary to allocate half of the funds invested from the general money to the second party. Or a share in the living space is transferred, proportional to the amount indicated above.

A similar situation arises when repairs were carried out with your own money (from your salary or savings). It is necessary to confirm the amount of investment through the court. The result will be the allocation of a share commensurate with the funds spent (50% of this amount). However, a military mortgage is divided during a divorce according to slightly different rules if the service member is discharged. In this case, he ceases to be a member of the NIS ().

Features of mortgages for military personnel

An apartment purchased with mortgage money during cohabitation is recognized by law as common property, as is the obligation to pay money to the bank. However, under the terms of a military mortgage, the cost of housing is paid by the state, thanks to the serviceman’s regular contributions to the savings-mortgage system.

It is impossible to divide an apartment purchased with this money for the following reasons:

• the funds are intended exclusively for the purchase of housing, that is, they are characterized by a specific purpose;
• Money donated to solve housing problems is not required to be returned.

Who owns the apartment purchased with a military mortgage? For this purpose, citizens serving in the Army are given a targeted housing loan (CHL). You can’t get money, buy an apartment and quit. From this moment on, the state binds the new settler to further service in the Armed Forces.

There are 2 ways for military personnel to purchase an apartment: after their years of service and before retirement. After retirement, the CNZ is given without any obligations on the part of the former officer or soldier. When a housing loan is obtained at a young age, before the time for pension payments comes, the military man will have to serve the time required by law.

Spouse no longer serves

When this happens, he is no longer covered by the target state. programs. This means that he will contribute the rest from his own pocket. In this situation, there are two possible options:

1. If the military mortgage is not paid after the divorce, then it will be divided in the same way as square meters (often the bank demands that the entire amount be paid ahead of schedule);
2. When the loan is completely closed, you will only be able to divide the residential property, and this will happen on a general basis.

The direct allocation of shares depends on the amount of funds invested by each party, the presence of a marriage agreement, and the use of mat. capital and other things.

The spouse paid for the loan with donated or inherited money - the portion due to her may be increased. Or the husband will have to pay compensation. The easiest way is to divide the military mortgage during a divorce on a voluntary basis. But here, too, some features need to be taken into account.

What is due to children when dividing an apartment purchased with a military mortgage?

The Family Code of the Russian Federation closely monitors the observance of children's rights in families after divorce proceedings. When a serviceman’s wife, after a divorce, does not have her own home, the child is registered in the father’s apartment.

A big problem when dividing a serviceman’s apartment is the collateral encumbrance. Until the entire amount invested by the lender is paid, the apartment belongs to the bank.

Only after the removal of collateral obligations can any operations be carried out with the housing. Children of military personnel will become full owners of an apartment purchased with a military mortgage only after their death. Inheritance in this case is the only way.

How to voluntarily share housing

Even when the spouses found a common language and were able to come to an agreement, the previously stated rule applies: the loan has not yet been closed - it will not be possible to divide the square meters. Therefore, we will consider the situation when the military mortgage has already been repaid during the divorce of the spouses. In this case, they have the right:

• leave real estate to someone alone;
• agree on the amount of compensation for part of the living space;
• re-register it for two (or three if there is a child);
• register housing for a child or children (by signing a deed of gift);
• offset when calculating the value of other items of property;
• sell the object of dispute and divide the proceeds.

Spouses are limited only by their own wishes. Sometimes a prenuptial agreement can help you understand how to divide a military mortgage during a divorce. Its observance also applies to the voluntary division of housing. Although often it is not possible to reach an agreement even with such an agreement. As a result, you have to go to the courts.

When to apply for division in court

If any dispute arises regarding real estate, a claim must be filed. But if the loan has not yet been repaid, the prospects for a court decision for the second family member are minimal because:

• the agreement with the creditor is not concluded with him;
• it cannot be re-signed to your spouse;
• it doesn’t matter if there are children in the family.

The judicial practice of dividing an apartment under a military mortgage shows that a claim should definitely be filed when joint money was spent to repay the loan. This fact increases the chances of a successful resolution of the case for the plaintiff.

You can count not only on monetary compensation, but also on the allocation of square meters. The main thing is to attach to the claim papers indicating the contribution of your own or family finances. And it is important to confirm that they went to decorate the living space. This could be receipts, a document confirming inheritance, an account statement, etc.

In the event of a divorce, a military mortgage is divided through the court and in the presence of a previously concluded agreement, if one of the parties does not comply with it. In any case, you will first have to remove the encumbrances from the collateral, repay the debt, and only then file a claim. Otherwise, the most you can count on is compensation for part of the costs. Do not forget also that after the marriage is dissolved, they may be required to close the loan before its expiration, and the spouse has the right to apply for the division of loan obligations.

Section of an apartment under a military mortgage

The answer to the question “who owns the apartment under a military mortgage”, often asked at the beginning of the divorce procedure, is unequivocal - a participant in the state program.

Is a military mortgage considered marital property? After a divorce from a military man, a husband/wife can only receive compensation of various amounts and a portion of the amount after the sale of housing, the loan for which has been fully repaid.

In some cases, courts recognize such apartments as jointly acquired property subject to division. Court decisions on military mortgages during divorce are dictated by factual circumstances.

So housing can only be divided as follows:

1. The apartment has been remodeled or undergone major repairs. Joint funds spent to achieve this goal are subject to division.
2. After the military man left service, loan payments were made through joint efforts. The second spouse is entitled to monetary compensation or division.
3. Since the size of a military mortgage is limited to a certain amount, which is not always enough to purchase decent necessary real estate for a large family, the premarital or family property of the second spouse is often sold. Then we can talk about the plaintiff’s contribution to the division and consider his rights to a share in the property.
4. There are cases when a military spouse receives a gift or inheritance during the period of mortgage payments and fully applies it to the mortgage payments. Then, during a divorce, her claims regarding the disputed apartment also become more than fair.
5. In addition to all of the above, we must not forget that maternity capital could be involved in the purchase of housing. According to the law, if it is used to purchase an apartment, individuals are required to redistribute shares, in equal parts between spouses and children.

ATTENTION: watch a video with tips on how to get housing for military personnel, terminate a contract and defend your right. Subscribe to our YouTube channel and through the comments to the video you can consult a military lawyer for free to solve your problem.

Division of income from the sale of housing after divorce

This option is most popular among families preparing to dissolve their marriage. What to do when the military mortgage is paid off and how is it divided in case of divorce? You can choose the simplest option - sell the property by dividing the money. This situation is permissible in a voluntary decision on the division of property. However, such alienation implies that the loan has been paid in full and the encumbrance has been removed. If this is not done, the Rosreestr authorities will not allow the deal to pass.

When selling a home, the income belongs in equal shares to both spouses. It is not the target amount, which means that the funds will be divided in half, unless there are other circumstances indicating the need for other proportions.

If the division of a military mortgage after a divorce occurs through the court, the judge may take into account the interests of the children by giving the family member with whom they remain a larger portion of the proceeds from the sale.

What you need to know about compensation

Often, such funds are paid by the party that receives the housing (). But payments are made only if the second family member has the right to count on the same square meters. The procedure begins after the military mortgage in case of divorce is paid, and it looks like this:

1. A compensation agreement is drawn up, which specifies the amount, the market value of the housing and other agreements of the parties.
2. After signing the papers, the real estate is registered under the new and sole owner.

All registration actions are carried out through Rosreestr. But first you need to determine whether the military mortgage is divided during a divorce in your case. This is done simply - follow the rules described at the beginning.

Can a wife claim her husband’s apartment using a military mortgage?

Military mortgage is a state program, the purpose of which is to solve the housing problem for a separate category of citizens (military personnel) at the expense of the federal budget. Only military personnel who meet the program requirements can take part in it. One of its principles is that a personal account belongs to only one person, whose data is listed in the NIS register.

Since the program is targeted funding, in this case the division into equal shares is incorrect. If the divorce procedure is started before the end of the loan repayment, the residential property remains entirely with the NIS participant. This is emphasized by judicial practice regarding the division of military mortgages during divorce.

The most common question women have before starting the divorce procedure with a military serviceman is the following: can a wife claim her husband’s apartment under a military mortgage? There are a number of nuances to this issue. Let's look at each of them together.

How does the situation change when you have a child?

First you need to understand which parent the child will live with when they separate.

1. If she lives with her father, the wife also receives part of the residential property. Its size does not exceed one third of the total area of ​​the object.
2. If he lives with his mother, he can be registered on the territory belonging to his father.
3. If the military mortgage in the event of a divorce between spouses and children has already been closed, and the wife and child are registered together, each is given their own share (children receive less than adults).

If you cannot reach an agreement, you will have to turn to the courts to resolve the dispute.

How and when to inform the bank and Rosvoenipoteka

If you decide to dissolve your family union or have already carried out this procedure, you need to notify the credit institution and other mortgage holders about this. This rule especially applies when the loan is repaid from common money. In such a situation, there is a risk that one of the spouses will not pay the debt. Then the bank has the right to demand payment of the balance of funds before the end of the contract.

A military divorce lawyer with a military mortgage will help resolve this situation quickly. He will tell you when to inform the bank and Rosvoenipoteka, and will also draw up an appeal in accordance with the law. The document must indicate the date of divorce, information about the spouses and income. You can send such a letter before the divorce or after it ends.

Why notify the bank about an impending divorce?

It is a natural desire of the lender to find out about a change in the borrower’s marital status. This is a standard requirement in almost every mortgage agreement. If he finds out about the ongoing divorce proceedings on his own, he will demand early repayment of the debt.

Bankers are not simpletons and do not risk money in vain. Before investing, they insure themselves as much as possible. When signing a loan agreement, a serviceman is required to present a marriage contract, according to which he is the sole owner. As a result, the spouse’s claims for the purchased housing will not be considered by the court.

To avoid any questions regarding the apartment during a divorce, you need to first read the loan agreement. Here are the answers to most of the doubts that the serviceman and his family members have.

Arbitrage practice

Before filing a claim, you need to find out whether the military mortgage is subject to division during a divorce in your case. If this is permissible, but agreement could not be reached, prepare for a trial. From experience we can judge that if there is documentary evidence indicating that personal funds are spent on housing, the chances of receiving part of the residential square meters are very high. Such evidence is:

• a loan agreement with a third party, which states the purpose of the loan - depositing funds for a military mortgage;
• a receipt confirming the receipt of money from relatives, or a gift from them, or confirmation of the inheritance of a specific amount;
• receipts proving the purchase of building materials, contract agreements with repair services, etc.

If the court receives such evidence, the decision, with a high degree of probability, will be made in favor of the plaintiff (Example -).

The practice of dividing an apartment under a military mortgage, developed by the Constitutional and Supreme Courts, should also be taken into account. And they expressed their position clearly: residential premises purchased during marriage, even under the NIS system, must be divided according to the RF IC . When it comes to early dismissal, courts often oblige military personnel to pay the amounts spent on them to Rosvoenipoteka. Moreover, these funds can also be recovered from the spouse of a person who resigned from service.

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Author:

Mortgage specialist Maria Yurievna Sokhan

Date of publication October 19, 2019 November 2, 2019

Is an apartment that was purchased with a military mortgage considered joint property?

Lawyer Gorobets Igor Yurievich

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8-912-343-72-22 8

The state guarantees the provision of housing to military personnel by providing housing or providing funds that will be used for the purchase of housing or for its construction.

One of the common ways to provide housing for military personnel is a military mortgage, or more precisely, the participation of the military in the savings-mortgage housing system.

These rights are contained in Article 15 of the Federal Law of May 27, 1998 No. 76-FZ “On the status of military personnel”, Article 15 of the Federal Law of August 20, 2004 No. 117-FZ “On the savings and mortgage system of housing for military personnel.”

However, the law does not directly disclose whether housing purchased using funds from the savings mortgage system (military mortgage) is jointly acquired property.

Thus, by virtue of Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property.

Article 36 of the RF IC specifies the grounds the presence of which gives the right to recognize property acquired during marriage as the personal property of one of the spouses.

Such grounds include:

- acquisition of property before marriage;

- the property was received as a gift;

- property was inherited;

- property was acquired through a gratuitous transaction, for example, privatization.

The determining factors in classifying property as separate property of spouses are the time and grounds for the emergence of the right of ownership of specific property for each of the spouses.

From the above it follows that the main factor will be the moment the right to housing arises, that is, if a house or apartment was purchased during marriage, then such property is jointly acquired.

According to the Ruling of the Supreme Court of the Russian Federation dated January 24, 2021 No. 58-KG16-25, “an apartment acquired by the parties during the marriage due to the participation of one of the spouses in the savings-mortgage housing system for military personnel is their joint property.”

Thus, the current legislation, as well as established judicial practice, stipulates that if residential premises, which were purchased on a military mortgage, were received during the marriage, then it is jointly acquired and is subject to division when going to court.

Attention! The information provided in the article is current at the time of publication.