Mortgage during divorce - how to divide?

Disputes that are considered during divorce in court

Currently, those spouses who have common minor children must be divorced by court. In addition, upon divorce, a person has the right to go to court if he is disabled and requires maintenance payments.

In this case, an application for alimony is attached to the divorce case. Property disputes between spouses are also resolved in court. But if they were previously able to conclude an agreement on the division of property on their own, this will greatly facilitate the divorce procedure and make it faster and painless. Otherwise, they may need a lawyer for the division of marital property. In addition, certain problems arise when you have property for which loans or mortgages have not yet been paid. In this case, the existing debt will also be distributed between the former spouses

Popular questions in court during divorce

A court hearing is a responsible and exciting moment, even for experienced ones. However, we still want to play it safe and prepare for the upcoming questions from the judge, lawyer, prosecutor and other official representatives, which may ultimately affect the final decision. So, we have given you a list of “hot” popular questions that are most often raised during divorce proceedings. However, they are more specifically determined depending on the claim of the claim and the family circumstances.

Reason for divorce

This is one of the first questions that seems simple at first glance, but if the reason is unjustified, for example, feelings have faded or you are tired of a burdensome relationship, then the court may give you from one to three months to reconcile. And if the reason is the harsh treatment of the spouse, violent acts, chronic alcoholism, then the judge usually makes a positive decision to divorce the spouses.

Does the second spouse agree to divorce?

The fact of the consent of the second spouse is also important, since divorce is often obtained through the court if an application is filed unilaterally. Therefore, get ready for questions such as “why doesn’t the second spouse give you a divorce and what caused the conflict?” [adsp-pro-1]

Who will the children live with after the divorce?

One of the most sensitive moments of the divorce process. Parents should think about this issue in advance rather than start arguments during the court hearing. Here, first of all, it is necessary to start from the interests of young children - with whom they would like to live, with whom contact is better established, their attachment to their mother or father, who has more time to raise children, the lifestyle of each of the parents and their moral position. If the spouses were unable to resolve this issue on their own, then the court will clarify such issues and then make its decision (Article 65 of the RF IC). As practice shows, children usually stay with their mother, and the father pays child support for them.

Amount and procedure for payment of alimony

Since after a divorce children remain to live with one of the parents, the other must take no less part in their lives - raise and support them. The issue of financial support for children is fixed in Article 80 of the Family Code, so this fate cannot be avoided. It is very important to discuss in advance the procedure and amount of monthly alimony, the amount of which will not infringe on both the interests of the child and the alimony payer himself. Alimony can be calculated in a fixed form each month, or it can be a percentage of the parent’s total income.

Division of jointly acquired property

Another one of the most common questions that causes a lot of controversy. According to the law, all property acquired during marriage is considered joint and divided between the sexes, but a conflict usually arises when relatives participated in the purchase of a particular property or material assets were donated specifically to one of the spouses. Here you need to prepare thoroughly and, in addition to your claims and arguments, you need to prove this fact with documents. Therefore, take care in advance to provide possible checks, receipts, and bank account statements. After hearing each party, the court makes a fair decision on an equal division of property. If the total estimated value of the joint property of one of the spouses exceeds what the second spouse received, then he can compensate the difference monetaryly.

If you want to adequately represent your interests in court, then in addition to prepared answers and evidence as your defense, try to pay special attention to your speech. It must be clear, literate and understandable. In court, do not interrupt the judge or the other party under any circumstances. Answer when you are given the floor. Be sure to exclude emotional statements and curses. This obviously won't do you any good. The rest will depend on how strong you have provided evidence to support your claims.

Property division

The division of property is one of the most unpleasant and painful topics during a divorce, since in this process all the negative character traits of people often appear. In addition, it is in this situation that all the grievances and stereotypical ideas about family life that both partners have become noticeable. When the division of the common property of the spouses begins, many people try to get a larger part, proving that their contribution to the acquisition of property is more significant.

The division of property is carried out only in relation to the property that was acquired during family life. All real estate and other property purchased before the registration of marriage relations with the registry office is indivisible and belongs to the spouse who entered into the purchase and sale transaction and other transactions. Personal property also includes all objects that were received as a result of gift or inheritance. The division of property between spouses does not apply to them.

Currently, division of real estate is one of the most common lawsuits in court. This is due to the high cost of real estate and the difficulty of purchasing other housing, making it very difficult for people to share a common apartment with their ex-spouse. The division of movable property is also often encountered at court hearings.

According to the legislation of the Russian Federation, all property acquired by spouses in a legal marriage is divided between them into equal shares, without taking into account how much one of the spouses worked and what level of income he had during this period. But there may be exceptions if, before registering family ties at the registry office, a marriage contract was signed between the spouses, which clearly distributes all property and the availability of benefits to the former spouses. In this case, the division of property will be carried out in accordance with this document.

Preparing for trial

If an agreement cannot be reached, they turn to the court for help.

At the court hearing, all the circumstances of the divorce will be considered. Therefore, you need to be prepared to be asked different questions. The judge forms a list of questions for the parties from the submitted statement of claim. The statement of claim contains the following requests:

• make a decree of divorce;
• resolve issues related to the division of joint property;
• determine the main points related to the payment of alimony;
• resolve issues regarding children's accommodation.

Depending on the mutual claims, each spouse must prepare for the meeting and collect a package of documents that may be useful to confirm their position. There is a standard list of documents that are always needed:

1. passport (with a copy of all pages);
2. Marriage certificate;
3. birth certificate of all common children;
4. documents confirming the existence of property;
5. income certificate;
6. certificate from the passport office about family composition;
7. receipts for paid state fees.

The absence of any of the listed documents may cause the divorce process to stop. It is impossible to divide, for example, a dacha for which there are no documents. Therefore, it is imperative to back up all your words with official documents. To get things moving, an application must first be filled out. Completing this document has its own rules.

Determining the child’s place of residence

Currently, according to the legislation of the Russian Federation, the place of residence of a minor child can be determined in the following ways:

voluntary decision of parents who were able to agree among themselves;

If there is no agreement, the location will be determined by the court, which is obliged to take into account the interests of the children.

In this section we will consider the second case in more detail. Judicial practice in Russia shows that at the moment, children after a divorce are more often left with their mother, even if there are disagreements between the parents on this issue. In some cases, children can stay with their father, but, as a rule, this situation arises under the condition that the mother cannot provide proper care, does not have the means to provide a normal life for the child, or has socially dangerous habits, such as drug addiction or alcoholism.

When deciding to determine the child’s place of residence, the court takes into account the following factors:

• housing. The child must have his own sleeping place, a table for studying and other benefits, so the guardianship and trusteeship service closely monitors this parameter. But in this case, one should also take into account the fact that the division of the spouses’ property can be carried out taking into account the interests of the child, therefore the only housing may be divided into unequal parts (taking into account the minor);
• parent's income. This point determines whether an adult can provide a minor with an adequate standard of living (normal food, clothing, leisure, etc.). But at the same time, one should also take into account the fact that the parent with whom the baby will remain will be able to file a claim for the recovery of child support;
• Psychological attachment to one of the parents plays a big role in determining the place of residence. In this case, the court takes into account who spends more time with the child, takes care of him, to whom the child is more drawn to and strives to spend more time.

These factors combine to help judges determine which parent the child should be left with. Also in this case, the minor himself can be interviewed, and the decision will be made in accordance with his wishes, since according to the Family Code of the Russian Federation, all decisions in a divorce must be made in favor of the children, including the question of their place of residence.

How does divorce happen in court?

The general scheme of a judicial divorce includes three stages. First, the plaintiff (divorce initiator) draws up a statement of claim. It often includes not only a request for divorce, but also other requirements.

What items may a claim for divorce include?:

• determining the amount of alimony for the maintenance of children and/or a disabled spouse;
• determining the place of residence of children - with which parent they stay;
• property division.

In practice, litigation on several issues can delay the final decision, so family law experts recommend not grouping your claims in one statement, but rather filing a separate claim for each controversial issue.

The plaintiff sends a statement of claim for divorce with supporting documents to the court at the place of residence of the defendant or at his registration. If the claim is filed correctly, the court sets a date for the first hearing. In normal practice, the waiting period for the first court hearing is from 1 to 3 months.

The second stage is a court hearing. During it, the judge clarifies with the spouses their attitude towards divorce, what are the reasons for it, and whether it is possible to save the marriage. If the husband and wife agree to divorce and they have no disputes regarding the further upbringing and maintenance of children, the property claims are mutually satisfied, the court satisfies the claim.

When one of the spouses does not agree to a divorce, the authority sets a conciliation period to restore family relations. If, after the expiration of the proposed time, reconciliation does not occur, the court at the next meeting makes a decision on divorce.

The third stage is the issuance of a court order for divorce. He will be sent to the registry office to register the divorce 30 days after the final meeting. This period is given in case one of the parties decides to file an appeal.

Pre-trial conversation during divorce: what is asked

Preparing a divorce case for court is regulated by Art. 14 of the Civil Procedure Code of the Russian Federation. One of its important stages is the pre-trial conversation (or preliminary hearing) with the spouses. During it, the judge clarifies the details of the upcoming trial and determines the legal framework of the process.

What does the judge clarify during the pre-trial conversation?:

• what are the circumstances of the decision to divorce;
• existence of legal grounds for divorce;
• who will additionally be involved in the proceedings.

Note! The content of the pre-trial conversation is private; its content is not recorded in the protocol.

During the preliminary hearing, divorcees file requests, for example, to hold a court hearing without their presence, present originals and copies of additional documents, present objections, etc. The judge, in the presence of the spouses, clarifies the claims, chooses the best option for their consideration - in one or more court proceedings .

Not often, but it happens that a conversation with a judge about the problems of family relationships leads to reconciliation between the spouses. In such cases, the case is closed at the stage of its preparation with a written refusal by the plaintiff from the requirements of the statement of claim.

The preliminary conversation usually lasts 20-30 minutes. Its main goal is to determine how firm the spouses are in their desire to divorce. During the conversation, the claims and their validity are clarified.

Questions the judge may ask:

1. What are the reasons and circumstances of the divorce, the rationale for the plaintiff’s position, and the defendant’s attitude towards the divorce.
2. Who will my minor children live with after the divorce?
3. Participation of the parties in the upbringing and maintenance of children.
4. How is jointly acquired property supposed to be divided?

Note! If issues of a property nature, education and child support are resolved peacefully and confirmed by notarized agreements, the judge will not be interested in the reasons why the spouses decided to divorce.

Payment of funds for the maintenance of a disabled spouse

An application for the collection of alimony can be submitted not only for the provision of children, but also for the maintenance of other family members. These include, in particular, spouses/ex-spouses who are disabled or became disabled within one year from the date of divorce. In this case, the court may determine the collection of alimony in a fixed amount.

In addition to the above, there are other situations that also require financial support from an ex-wife or husband. This category primarily includes pregnant women or mothers whose children have not reached three years of age. In this situation, the court may order alimony to be paid not only for the child, but also for the mother.

The third case of the obligation to pay alimony to former spouses is the presence of disabled children together. In this case, it is necessary to transfer money to the ex-spouse until the child reaches the age of majority, for the provision of permanent care. If a child is disabled in the first degree, then alimony payments are made even after he turns eighteen years old.

Collection of alimony

Procedural features of consideration of cases for the collection of alimony include various details. First of all, it should be noted that the issue of living for children and paying them maintenance by the second parent is decided by the court automatically in the case of divorce proceedings and if the court determines that the parties have not reached an agreement. Alimony for minor children is a mandatory payment that cannot be canceled; in extreme cases, you can challenge the amount of the payment.

Currently, there are different types of these payments: the court may decide to collect alimony for the maintenance of parents, but this payment will not be accepted in divorce proceedings. Termination of family relations in court involves a decision that in the future alimony will be collected for minor children or for the spouse who has lost the ability to work (is disabled).

The procedure for paying and collecting alimony is determined by the court, and citizens must obey its decisions or appeal them to higher authorities. If the ex-spouse does not want to pay, then you can write a statement of claim for the collection of arrears of alimony, as a result of which this case will be handled by bailiffs who, with the help of arrests and the sale of various objects owned by the debtor, will be able to cover the claim.

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What the law says

All property and debts acquired during marriage are joint property. With a mortgage, there are both real estate and debts, and they all belong to the spouses in equal shares. In this case, it does not matter at all who is registered as the owner. Even if it is only one spouse, the second by law has exactly the same rights.

When concluding a loan agreement, both spouses become borrowers. Usually one goes as the main borrower, the second as a co-borrower. The main one is usually the one who has a greater level of personal solvency. But this does not change the essence of the matter - even if the spouse had and does not have income at all, she still has similar rights to the object.

We are talking only about official marriage and registration of a mortgage after registering the relationship. If we are talking about a military mortgage, such an apartment in any case is not recognized as jointly acquired property.