How to divide an apartment with a mortgage during a divorce, division of a mortgaged apartment during a divorce

How to divide mortgage property during a divorce in 2023? Let's look at all the details.

First of all, you need to learn all the intricacies of the partition process. Practice shows that solving a problem can take a long time: until the spouses decide who will get the children, draw up all the divorce documents and agree on who pays, months may pass. However, you should not delay: if you fail to repay the loan within three months, the bank has the right to dispose of the housing at its discretion . It is in your best interest to complete the process as quickly as possible.

Where to begin? First of all, answer the basic questions:

• Are you officially married?
• Have you entered into a prenuptial agreement?
• Was the mortgage taken out before or after marriage?

These three main points will influence your further actions.

Actual defects and drips

If the marriage contract was not drawn up, the mortgage (like the apartment) is more likely to remain with the person in whose name it was registered.

If there is a need to prove that both formal spouses participated equally in the mortgage, witnesses and evidence are included, for example:

• checks;
• personal account statements;
• payment receipts;
• other;

The same rule applies to renovations in a mortgaged apartment or the purchase of expensive equipment. In this case, it is possible to prove something in court only with the help of a good lawyer.

Marriage contract

Drawing up a marriage contract is something you should think about “on the shore.” The document spells out all aspects of the division of real estate, including a mortgage, even the one taken out before marriage . Since the document is certified by a notary, he will play a key role in the legal process.

If you have entered into a prenuptial agreement, the mortgage will be divided according to the agreement. If not, then you will have to resolve the issue through the court.

Mortgage before marriage. How to divide?

According to the family code, all property acquired before marriage is considered personal, which means that after a divorce it is not subject to division. However, with the permission of the same family code, the ex-spouse can claim a share in the apartment, since the loan payments were made from the general budget . At the same time, even a non-working person can make demands: the income of one of the spouses in a marriage is considered the common family budget.

Judicial practice shows that processes are often completed in favor of such a spouse, especially if there is a good evidence base (checks, statements, etc.) and an experienced lawyer.

The situation is more complicated with apartments taken on a mortgage in a new building. According to the law, ownership of such housing will be given only after the facility is put into operation. Therefore, the situation can develop in two scenarios:

• If at this time the borrower is married, then most likely the court will oblige him to allocate a share in the apartment to his ex-spouse during a divorce.
• If the borrower divorces before receiving the certificate, the court will order compensation to be paid to the ex-spouse, since according to the law, the loan was paid jointly.

The court's decision on a mortgage taken out before marriage largely depends on the experience of the lawyer.

Mortgage during divorce, if the former spouses are co-borrowers

Statistics show that in more than 70% of cases, ex-spouses are co-borrowers. In this case, before filing a division of the mortgage during a divorce, you need to consider all possible options and try to resolve the issue amicably . This will help avoid litigation, loan defaults and other unpleasant moments. You can peacefully resolve the process:

1. Continue paying your mortgage together;
2. If one of the spouses refuses the mortgage and apartment in favor of the other;
3. If the bank agrees, sell the apartment and divide the proceeds in half;
4. Pay off the mortgage in full, then sell the apartment and divide the funds;

The last option is the simplest in terms of registration, since it does not require lengthy proceedings. However, it is rarely possible to solve the problem this way.

When choosing the first option, you need to contact the bank to draw up a new agreement that will facilitate payments. Then each borrower will pay his share of the loan debt separately.

It is worth considering that shares can be voluntary. Judicial practice shows that banks rarely agree to share a loan, since this can result in additional difficulties for them.

You must remember that any decision of the bank can be challenged in court.

How to sell an apartment with a mortgage?

sell an apartment for which the loan has not yet been paid only with the permission of the bank . It won’t work out any other way: the mortgaged housing is pledged to the bank until the loan is repaid in full.

When selling an apartment, each of the former spouses has equal rights to part of the housing, or its cash equivalent.

This method is inconvenient not only because of additional difficulties with the bank, but also in monetary terms, because: it is difficult to find a buyer for an apartment encumbered with a mortgage . Few people are willing to spend money on additional legal checks and drawing up a purchase and sale agreement. And you will have to sell your home at a reduced price, otherwise no one will buy it.

What to do if your ex-spouse refuses to pay?

If one of the co-borrowers refuses to pay the mortgage for 3 months, but is in no hurry to sign a waiver of the share in the apartment, there are 2 ways to solve the problem:

• The mortgage loan is repaid by one party.
• The bank sells the home, and the proceeds go to pay off the loan. Most often, the bank sells housing at a low cost, approximately equal to the amount of debt, which significantly speeds up the process.

Mortgage in case of divorce of spouses with children

If former spouses have minor children, the share of ownership in the home changes in favor of the person with whom they remain. Based on this rule, further division of the mortgage occurs.

Note! If a child is registered in a mortgaged apartment that is for sale, he must be discharged urgently! Otherwise, the parents may become interested in the guardianship authorities, even to the point of raising the issue of deprivation of parental rights due to the inability to provide normal living conditions for the child.

How will we divide?

• presence of children;
• whether a mortgage was taken out before marriage;
• to what extent each borrower participated in the payments;
• and others;

The proportions may vary and are determined by the court.

Military mortgage and divorce

A military member becomes a participant in the program, as well as a home owner, regardless of the presence of a spouse or children. Therefore, the division of the mortgage does not require the participation of the latter. Also, the participant does not have the right to renew the loan agreement, even if it is necessary to divide the apartment purchased with a military mortgage.

These rules also touch on the other side of the issue: in the event of non-fulfillment of the terms of the CZH contract (non-payment or other force majeure circumstances), the serviceman himself is obliged to return the funds taken under the program, but not his other half, even the former.

Renting a mortgaged apartment

Some divorced spouses decide to temporarily rent out their mortgaged home in order to pay off the loan. However, such actions are illegal, since the apartment is pledged to the bank. That is why concluding a lease agreement is impossible without the permission of the bank .

Video: Mortgage and divorce

And togas

If you want the mortgage division to end with a positive outcome for you, you need to approach the issue with all responsibility. Try to resolve this issue peacefully: it will save you a lot of effort. If it doesn’t work out, then collect all the papers proving your involvement in repaying the loan and don’t skimp on a good lawyer.

How to divide an apartment with a mortgage during a divorce, how to divide a mortgaged apartment during a divorce, how to divide a mortgage during a divorce, judicial practice

An integral part of the process of dissolution of a marriage is the division of property, which most often occurs very turbulently and with a lot of different disputes. Housing is a key object for which every family member is ready to fight, sparing no time and effort.

If there is a certain clarity regarding square meters owned by spouses, due to the corresponding regulation of family law, then in the situation of a mortgage everything is complicated due to many subtleties and the lack of a unified practice in the legislation on what solution will be correct in a particular controversial case.

Attention! Analyzing and assessing the circumstances on your own is an extremely difficult task, and attempting to do so may lead to mistakes that can negatively affect your chances of solving the problem.

Call + 7 (495) 722-99-33.

If the mortgage was taken out before marriage

At first glance at the situation, it seems that if one spouse took out a mortgage even before the relationship was consolidated, the housing should undoubtedly belong to him. It seems that in the Family Code one can find a provision confirming this view - the norms of Art. Article 36 talks about classifying everything acquired before marriage as the personal property of the spouse, that is, indivisible upon dissolution of the bond.

IMPORTANT: This is only true for situations where the spouse fully became the owner of the home before marriage, otherwise the repayment of mortgage obligations is carried out by the spouses mutually - that is, from the joint budget. In a situation where, for example, the spouse did not work during the period of cohabitation and repayment of mortgage obligations, she still (as confirmed by the provisions of Article 34 of the Code) can demand:

• part of the housing;
• compensation of mortgage payments in a certain part.

Judges do not have a general practice regarding similar cases, so it is almost impossible to independently predict the outcome of a particular dispute. Lawyers at ICPI “Planet of Law” are ready to advise you specifically on your situation and identify possible ways to solve the problem! All you need to do is dial our number + 7 (495) 722-99-33!

You can protect yourself from unfair division of your home with your spouse, whose contribution to the purchase of the home is absent:

• Before formalizing the union, choose a contractual regime for property, that is, sign a marriage contract, which will spell out the division procedure that seems correct to you;
• try to resolve the issue through negotiations, with the support of a lawyer, if the termination has not yet reached the court. You can call on the conscience of the spouse who took out the mortgage, arguing that the apartment did not belong to him completely, so it would be fair to recognize it as common property. If successful, a division agreement is drawn up, which is certified by a notary;
• in court, recognize a mortgaged apartment as joint property on the grounds that the second spouse also made payments on the mortgage, the first spouse paid them from the joint budget, and from the moment of marriage, the living space was subject to reconstruction and improvements: major repairs of all or individual rooms, replacement of communications and plumbing, installation of built-in furniture and equipment, etc.

If the mortgaged apartment is registered during marriage

The legislation absolutely clearly states that housing that became the property of spouses during marriage through the use of an instrument such as mortgage lending is included in the category of jointly acquired property. What methods of dividing an apartment in a mortgage has practice developed?

A mortgage loan has never stopped anyone from getting a divorce

1. Sale of a purchased apartment with a mortgage

The apartment is sold, the funds received are sent to the bank to pay off the debt, and the remaining amount is equally distributed among the individuals.

In this case, the sales process can only be carried out with the consent of the bank and with its full control. In practice, banks try to avoid such a resolution of the dispute, since they lose interest on early repayment of the debt.

In this case, you will need an experienced lawyer who will help resolve the issue with the bank through negotiations.

2. Special conditions of the loan agreement

When a loan is issued to spouses as co-borrowers, a bank experienced in the field of mortgage disputes often provides a special clause in the mortgage agreement stating that divorce does not change the terms of payment. That is, the former couple remains bound by a common loan; their responsibility in such a situation is joint and several.

PLEASE NOTE: the bank is free to decide who to make demands for payment - either of the spouses, or both at once.

The best solution in this situation may be to sign an agreement between the spouses and the bank to the original contract, where joint and several liability will be replaced by the individual obligations of each of the entities to pay only their share of the mortgage. But it is worth noting that not every bank will respond positively to such a proposal - after all, such a decision deprives it of the freedom to choose a co-borrower to whom it can turn with a demand.

3. Re-issuance of a loan

If the bank agrees, then the second spouse forgives his obligations to repay the mortgage, having previously paid a certain amount to the first spouse, who claims ownership of the apartment. The parties can agree to re-issue the loan without paying compensation, for example in cases where the mortgage was taken out recently and only a few payments have been made.

In any case, as a result of repayment, the housing will become the property of the spouse who repaid the mortgage obligations, and the second will receive compensation covering half the cost of the debt.

Settlement agreement on the division of a mortgaged apartment

Spouses have the right to end a legal dispute over the division of a mortgaged apartment with an amicable agreement, having agreed on the method and conditions of its division independently. If an agreement is reached in the dispute, the proceedings on the claim for division of the mortgaged apartment are terminated.

• To do this, the court must submit a written agreement signed by both spouses, which details the conditions they accept for dividing the mortgage apartment.
• The court reviews this agreement and, if the conditions set out there do not violate the interests of the parties or third parties (for example, children or the bank), it approves it with its own ruling, which in its legal force will be equal to a court decision in the event of further refusal of any of the parties to fulfill the agreements .
• If one of the parties refuses to comply with the accepted conditions, the court, at the request of the other party, issues a writ of execution to enforce the settlement agreement.

You can maintain friendships even after divorce

The nuances of dividing a mortgaged apartment if you have children

Article 39 of the RF IC gives the court the right to deviate from the absolute equality of shares in the property of spouses specified in the law, taking into account the interests of common children under 18 years of age.

Does this right apply to the division of a mortgaged apartment? Definitely yes, but the parent with whom the children remain after the divorce will have to provide compelling evidence of the need to deviate from the rules of equality. Moreover, the division of an apartment encumbered with a mortgage is much more complicated than an apartment without encumbrances.

Exceptional circumstances leading to an increase in the share of one of the spouses in mortgaged housing may be:

• Lack of other living space for a spouse and children to live;
• Serious illness of the child and the need for constant care;
• Low income, which precludes resolving the housing issue after a divorce;
• Lack of income from the second spouse, as well as his deliberate actions aimed at undermining the family budget: gambling addiction, deliberate parasitism, alcoholism, drug abuse, etc.

As with the division of a mortgaged apartment without taking into account the interests of children, the court has the right to divide it as follows:

• Leave the apartment to the spouse and children, obliging him to pay part, and not the full amount of the loan payments paid by the second spouse, while the remaining amount of the debt will be paid by the actual owner of the apartment;
• Oblige the spouses to sell the apartment (but only with the consent of the bank - a third party in the case), transferring the proceeds to the bank to pay off the debt, and transfer the remaining funds to the spouse with whom the minor children remain;
• Renew the mortgage agreement for a spouse with children, both with and without imposing the obligation to pay the second spouse the amount of compensation (including taking into account previously paid loan payments).

Judicial practice also knows other cases of dividing a mortgaged apartment in the presence of children, however, they are all individual and only an experienced lawyer will be able to predict possible solutions to the problem.

The right of the court to deviate from equality of shares is its right, and like any right, it can be used, or it can be ignored in the absence of compelling reasons for its use.

Children are always worried about their parents' divorce

Is military mortgage divided?

Military mortgage is a special case of purchasing credit real estate. The fact is that it is not repaid by the family of the serviceman, but by the state represented by the Ministry of Defense of the Russian Federation.

Military mortgages come with many challenges. When registering it, banks impose a condition on the borrower to conclude a marriage contract, according to which, in the event of a divorce, the serviceman becomes the sole owner of the home and repays the loan alone.

Thus, the spouse of a serviceman, agreeing to the terms of the contract, risks subsequently being left without housing. And even if the court rules on equal division of housing, in reality this is practically impossible.

Legal assistance in cases of division of a mortgaged apartment

If it is not possible to divide housing and debts by agreement, the only option left is to go to court, where each party sets out its demands and arguments. And the more convincingly they are presented, the greater the chances of an outcome that suits you.

The ambiguity and insufficiency of judicial practice de facto excludes the possibility of each spouse independently conducting their affairs in this category of cases. Lawyers of the ICPI “Planet of Law”, within the framework of the comprehensive program “Divorce without the presence of one of the parties,” offer their assistance both in terms of supporting divorce cases and in terms of any issues related to the division of property.

How is an apartment divided in a mortgage during a divorce? Legal Advice

Last updated February 2023

Not every family can afford to purchase their own home with money earned through honest labor and savings. Therefore, the only way out for them is to purchase housing with a mortgage.

Regardless of which spouse the mortgage loan agreement is drawn up, according to family law, this debt falls on the shoulders of both. Just like an apartment purchased using mortgage funds, from the moment of purchase it becomes the joint property of the spouses.

For this reason, the question of how an apartment is divided in a mortgage during a divorce baffles almost every breaking up married couple. According to the law, everything is clear: both the apartment and the mortgage debt are divided in half between the former. What happens in practice? Let's try to figure it out.

In recent years, the practice of issuing mortgage loans to married couples is such that one of the spouses acts as the main borrower, and the second is his co-borrower or guarantor. This does not change the essence - they still bear a joint and several obligation to the banking organization that issued the loan.

If you decide to divorce or have already divorced, you must notify the credit institution about this. She will be the one who will offer you acceptable options for dividing the mortgaged apartment and the mortgage debt itself.

Acceptable primarily for them. But she may not agree with the decision made by the court or specified in the marriage contract (settlement agreement on the division of property).

Optimal section options

Sell ​​the mortgaged apartment, repay the loan from the proceeds, and divide the rest equally between the spouses

This is an almost ideal option, because it relieves those getting divorced from both the need to live under the same roof and the obligation to repay the loan. But it is not always feasible. There are several reasons for this.

• Firstly, you need to coordinate the sale with the bank that issued the loan, and they are not always willing to give their permission to this, because they lose a considerable part of the interest charged from the borrower for using the loan. But if both borrowers are solvent, then the banking organization can accept this scenario and offer them, after the sale of housing, to use the proceeds for a down payment to purchase two separate apartments and obtain two new mortgage loans.
• Secondly, it is unlikely that it will be possible to find a buyer who wants to get involved in the purchase of housing that is pledged to the bank.
• Thirdly, the spouses will most likely have to deal with the sale of the apartment together, but for rare divorcees this can evoke positive emotions.

Loan payments are divided equally between the ex-husband and wife, and each begins to bear individual, rather than joint, responsibility for repaying the mortgage loan

Former spouses, in accordance with the letter of the law, remain equal owners of the apartment, but they are also obliged to pay off the debt together - only each one has his own part.

This is not entirely convenient, especially if neither of them has any other housing and they have to live under the same roof.

There are situations when one of the co-borrowers simply stops making payments on his part of the loan because:

• does not live in a mortgaged apartment and does not consider himself obligated to pay for it
• does not pay intentionally so that the bank puts the mortgaged apartment up for auction forcibly
• does not have sufficient funds for this purpose, etc.

As for the first and second cases, the spouse who regularly makes mortgage payments needs to understand that this situation is to some extent to his advantage.

Provided that he repays both his part of the loan and that which the ex-spouse must pay, he has a good chance in the future to claim a larger share in the apartment.

That is, it is necessary to make payments in full, otherwise a situation related to the second case, described below, may occur.

One of the spouses, who is tired of living together in a mortgaged apartment with his ex-wife (or husband), may deliberately stop paying the loan.

Sooner or later, this will lead to the bank going to court and receiving a decision on the forced seizure and sale of the apartment with a mortgage.

After selling the home at auction, both exes may be left with nothing - after all, its cost will be much lower than the market price, but this is a good chance to get rid of family ties and living together completely.

This also includes a sub-option in which one of the spouses repays his part of the mortgage loan ahead of schedule, then the second remains the only borrower and is already individually responsible for its repayment.

 Or rather, she will also remain in joint ownership, but the spouse who repaid the loan ahead of schedule will not be able to dispose of his share until the encumbrance is finally removed from her.

It must be borne in mind that with this option, the bank will definitely and very carefully check the solvency of both spouses. And only after making sure that both of them can actually pay off the part of the debt due to each, will he agree to split the payments.

One of the spouses waives his rights to the mortgaged apartment in favor of the other and at the same time is exempt from loan payments

This option is very convenient when it is impossible to repay the loan immediately or sell the mortgaged home, and the refusing spouse has another living space. The banking organization that issued the loan can accept this option only if the borrower, who remains a single person, is recognized as fully solvent.

It is important to know that for any re-issuance of a loan agreement, a banking organization has the right to charge a fee for changing the terms in the amount of 0.5% to 1% of the amount of the remaining debt, but in general it is very reluctant to change the terms of the agreement.

Other options

The most ideal option that can suit any credit institution and facilitate the procedure for dividing an apartment in a mortgage during a divorce is to repay the mortgage loan ahead of schedule. To do this, you can find the necessary funds by:

• sale of other expensive jointly owned property
• apply for another loan for one of the spouses
• sell a mortgaged apartment, etc.

You need to be prepared for the fact that some credit institutions, having learned about the divorce of co-borrowers and their desire to share solidarity on the mortgage loan, may put forward a requirement for mandatory early repayment of the loan.

This condition may be stipulated in advance in the loan agreement. Also, when issuing a loan, banks may require borrowers to draw up a prenuptial agreement in order to avoid possible problems with the mortgage in the future.

And lately this has been happening quite often.

There are also former couples who do not re-register anything, but continue to pay the loan after the divorce on the same terms. This is possible in cases where the relationship between the ex-spouses has not deteriorated, they continue to live in a mortgaged apartment together or pay a loan for the apartment in which their common child (children) lives.

If there are children

When dividing an apartment with a mortgage, if there is a child, the court may deviate from the rule under which everything acquired jointly by spouses during marriage will be divided in half upon divorce. Quite often there are cases when the court leaves the mother and children a larger share in the apartment, while the ex-spouses continue to pay the loan in equal shares.

And if the mother has special circumstances, such as disability due to health, temporary disability due to pregnancy or child care, etc., then her loan payment may even be reduced by the court in relation to the amount that the father will pay. But again, this is possible only with the consent of the credit institution.

Often, maternity capital funds are used to fully or partially repay a mortgage loan.

In this case, the child (or children) by law must be allocated shares in the mortgaged housing after the encumbrance is removed (see mortgage with maternity capital and allocation of shares to children in case of divorce).

So the share in housing of the parent with whom the children will remain after the divorce also increases due to this.

Military mortgage

When purchasing an apartment under a military mortgage and divorce, the above rules and laws will not apply. And all because, in fact, the mortgage loan is repaid with funds allocated by the Ministry of Defense of the Russian Federation, and not by the serviceman himself and his wife.

Three basic rules of military mortgage:

• a loan agreement for the purchase of housing can only be concluded by the serviceman himself (without the participation of his wife),
• the maximum loan amount under the military mortgage program is 2,350,000 rubles,
• the serviceman will be the sole owner of the mortgaged housing,
• he will not be able to renew the loan agreement in the event of division of housing.

In the event of a divorce, spouses face a lot of problems when dividing such an apartment. Courts, as a rule, make decisions according to family law and require the division of housing between spouses in half, but in practice this is almost impossible.

Often, when obtaining a military mortgage, credit organizations require the borrower to enter into a prenuptial agreement, under the terms of which he will remain the sole owner of the apartment and executor of the loan obligations in the event of a divorce. Spouses often draw up such a document in order to purchase their home, without thinking about the possible consequences when, in the event of a divorce, members of a military personnel’s family may be left without a roof over their heads.

Mortgage before marriage

It is not uncommon for a husband or wife to buy an apartment with a mortgage before they got married. However, mortgage loans, as a rule, are long-term and costly, and both legal spouses subsequently have to pay the loan from a common wallet.

If life together does not work out, then the second spouse will not only be exempt from mortgage payments, but will also be able to recover from the first, who is the borrower, his share of the funds allocated to repay the loan. And this is quite fair, because the latter remains the sole owner of the mortgaged housing purchased before marriage, and the other cannot lay claim to it.

There are also situations when an apartment is purchased with a mortgage already during marriage, but the down payment was made using funds received by one of the spouses from the sale of “premarital” housing, inherited or donated (that is, his sole). If this fact is proven in court during a divorce, he may well count on a reduction in his share in the mortgage loan or on a preferential right in the division of such housing.

How is an apartment divided in a mortgage during a divorce: took out a mortgage and got married, mortgaged apartment of the spouses

Dividing property during a divorce is not an easy matter. Especially if you have to share housing for which the loan has not yet been paid off.

How to divide an apartment with a mortgage during a divorce

The solution to the question of how a mortgaged apartment is divided during a divorce will depend on the relationship of the spouses. If they are ready to reach an amicable agreement, an agreement can be formalized. If no one wants to give in, the division case will have to be resolved in court.

Division by agreement of spouses

In accordance with paragraph 2 of Art. 38 of the Family Code of the Russian Federation, an agreement between spouses on the division of any property, including an apartment purchased with a mortgage, is certified by a notary.

As a rule, the notary himself draws up an agreement on the division of jointly acquired property. It should contain the following information:

• Full name of the spouses, their passport details, registration addresses;
• date of marriage registration, details of the marriage certificate (series and number, by whom and when issued);
• property that becomes the property of each spouse;
• which spouse will bear the costs associated with concluding the agreement.

In relation to an apartment purchased with a mortgage, the agreement establishes the rules: who pays and how much, with whom the bank interacts, how shares are distributed between spouses.

In this case, the procedure for repaying the loan, its size, terms, interest and repayment schedule can only be changed by agreement with the bank. If the lender refuses to make the amendment, all original terms of the loan will remain in effect.

The only thing divorcing spouses can do is determine among themselves how they will repay the loan.

If the spouses nevertheless decide to try to change the terms of repayment of the loan, they need to contact the credit institution for consent to change the procedure for repaying the loan. To do this, you will need to submit documents to the bank confirming that the joint debtor has the ability to repay the loan. Confirmation can be:

• a certified copy of the work record;
• certificate of income of an individual in form 2-NDFL;
• any other documents indicating the presence of permanent income from which the joint and several debtor could repay the loan.

In addition, other documents may be needed. Each bank has its own requirements, so in each specific case the exact list of documents must be clarified directly with the company’s employees.

If the bank gives the go-ahead to change the loan repayment terms, it will be possible to stipulate the already changed procedure in the agreement.

In any case, after concluding an agreement on the division of property and receiving consent from the bank, the spouses must contact the territorial body of Rosreestr to register their rights to the shares specified in the agreement. If the apartment is pledged to the bank, you will also need to make changes to the mortgage.

Judicial division

Paragraph 3 of Article 38 of the Family Code of the Russian Federation provides for a judicial procedure for dividing the common property of spouses and determining shares in this property if the husband and wife cannot agree amicably. Spouses may file a claim for divorce and a claim for division of property at the same time, or file these claims separately.

Family Code of the Russian Federation in paragraph 7 of Art. 38 allows for the filing of a claim for the division of marital property at any time during the marriage, simultaneously with the dissolution of the marriage and after the dissolution of the marriage for three years.

In this case, the limitation period will be calculated from the day when the injured party learned or should have learned about the violation of his right.

If property is divided that is not claimed in any way by third parties, only the spouses participate in the case.

And if a claim is filed for the division of an apartment purchased with borrowed funds and pledged to the bank, the creditor must also become a participant in the process.

The bank that issued the loan and acts as the mortgagee of the apartment should be involved in the case as a third party that does not make independent claims on the subject of the dispute.

The debts of the spouses will be divided in proportion to the shares transferred to them or in other proportions - taking into account the invested own funds of one of the spouses.

If property is divided between spouses in equal shares, then debts are divided in similar shares.

That is, if the apartment is mortgaged and the spouses get divorced, each of them will be assigned the obligation to repay the loan received from the bank for the purchase of the apartment in proportion to the share in the right to real estate received as a result of the division.

The statement of claim must indicate:

• name of the court to which the claim is filed;
• information about the plaintiff and defendant: full name, place of residence, as well as, if desired, contact telephone number and email address;
• information about the representative, if the claim is filed by an authorized person: full name, place of residence, details of the power of attorney on the basis of which he acts, as well as, if desired, contact telephone number and email address;
• a requirement for divorce if a claim is filed for simultaneous dissolution and division of property;
• a requirement for division of property indicating which parts of the jointly acquired property should be awarded to the plaintiff and which to the defendant;
• the circumstances on which the plaintiff’s claims are based and the evidence supporting them;
• the cost of the claim, which is determined by the value of the property on the division of which the plaintiff insists;
• list of documents attached to the claim.

The amount of the state duty depends on the price of the claim: currently it ranges from 0.5 to 4%. The cost of the claim will be calculated based on the value of the share in the ownership of the apartment that the plaintiff is claiming.

The following documents must be attached to the filed claim for division of the apartment:

• copies of the statement of claim for the defendant and third parties;
• marriage certificate or certificate of marriage registration - to confirm that the property was acquired during marriage;
• a certificate of divorce or a copy of the court decision on divorce, if the marriage has already been dissolved;
• title document confirming the purchase of an apartment - a purchase and sale agreement;
• certificate of state registration of rights or an extract from the Unified State Register of Real Estate; loan agreement;
• payment schedule for loan repayment;
• a certificate from the bank about the amount paid and the balance of the debt;
• a document confirming payment of the state duty;
• power of attorney if the application is submitted by a representative.

If the division of the apartment does not in any way affect the debt obligations of the spouses to the bank, consent to the division of the apartment from the creditor will not be required. In such a situation, the rights of the bank as a pledge holder are not violated - the apartment remains pledged, and the pledge holder continues to exercise the pledge right that belongs to him.

Just as after signing the agreement, after the court decision on the division of the apartment enters into legal force, it is necessary to carry out state registration of the changes that have occurred. To do this, it is necessary to submit to the territorial body of Rosreestr a copy of the decision certified by the court with a note about its entry into legal force.

For registration of rights to an apartment divided during divorce, a state fee of 2,000 rubles is paid.  

The most common apartment division schemes

Surcharge

When deciding how to divide a mortgaged apartment during a divorce, spouses can agree in an agreement that one of the spouses will receive property whose value is less than the share due to him, plus monetary compensation for the missing part. For example, two-thirds of the apartment will go to the wife, and one-third and the agreed amount of money will go to the husband.

If the spouses themselves agreed on monetary compensation, the spouse who received it will have to pay personal income tax. If such a division and determination of the amount of compensation is made by court decision, personal income tax will not have to be paid.

Allocation of share in kind

The allocation of a share in kind is the physical division of premises in an apartment between the owners. For example, a husband and wife share ownership of a two-room apartment with two bathrooms. If the rooms and bathrooms are the same size, it will be possible to carry out a real division: each spouse will receive a room and a bathroom, but the kitchen can be divided into two parts by a partition.

The Civil Code of the Russian Federation provides for the possibility of allocating in kind a share from the common property if the apartment is in shared ownership of the spouses. Except in cases where the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property. Shares in kind can be allocated by agreement of the spouses or in court if the husband and wife could not agree.

True, judicial practice on this issue is inclined towards refusing to allocate a share.

This means that the allocation of the share will be a fiction: at least the front door and corridor will remain in common use. In this case, the spouse who would like to allocate his share in the apartment has the right to demand payment of the cost of this share from the other.

If you took out a mortgage before you got married

The Family Code of the Russian Federation in Article 36 states that property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift by inheritance or through other gratuitous transactions (the property of each spouse), is his property.

That is, the specified property does not belong to jointly acquired property: the right of common joint ownership does not arise on it, and it is not subject to division in the event of divorce.

However, in the case of dividing a mortgaged apartment acquired before marriage, everything is not so simple.

After all, property rights arise before marriage, and real estate is paid for during family life from the general budget.

When resolving disputes regarding such property, courts look not only at the time of acquisition, but also at the procedure for payment.

The Review of Judicial Practice of the Supreme Court states that when courts resolve this category of disputes, it is not enough to establish only the period of acquisition of real estate.

On the contrary, the courts need to establish with what funds, personal or general, the property was acquired, and the ownership of the disputed apartment was transferred through paid or gratuitous transactions.

The likelihood that a spouse will claim part of the housing during a divorce, and the court will side with him, is extremely high.

Even if the divorce takes place before the registration of the right, one of the spouses may be required to pay monetary compensation for part of the payments on the mortgage loan, since from the point of view of the law and the court, the loan was paid not by a specific person, but by the family together.

The main thing to remember is: if the mortgage was taken out before marriage, you should not hope that in the event of a divorce, the ex-spouse will behave like a decent person and will not want to take advantage of the rights given to him by the Family Code.

In such a situation, it is better to draw up a marriage contract and specify in it the procedure for dividing the mortgaged apartment. Such a document can be signed before marriage or at any time in family life.

If there was no prenuptial agreement and it comes to divorce, try to convince your spouse to renounce claims to property that did not belong to him.

What to do with a mortgage when spouses divorce

With kids

A mortgage in the event of a divorce between spouses with children differs significantly from the distribution of shares in real estate if childless people divorce.

Paragraph 4 of Article 60 of the Family Code of the Russian Federation states that just as a child does not have the right of ownership of the parents’ property, so the parents do not have the right of ownership of the child’s property. Children and parents living together can own and use each other's property by mutual consent.

However, the court, when considering a dispute, may deviate from the general rule on the equality of shares of spouses in their common property and take into account the interests of minor children or the interest of one of the spouses - for example, if the other spouse, for unjustified reasons, did not receive income or spent common property to the detriment of the interests of the family . At the same time, minor children do not have an independent right to their parents’ property, although their interests are taken into account during distribution.

If the mortgage was issued to one of the spouses, he had to provide the Pension Fund with a notarized undertaking to re-register the property to all family members immediately after repaying the loan.

In the event of a divorce, such an apartment can be re-registered as common shared ownership even before the mortgage is paid off.

In this case, the court will have to prescribe in the issued act how and which of the adult family members will repay the loan. However, the need to distribute shares does not entail unconditional distribution in equal shares.

Courts, as a rule, are guided by the ratio of their own funds invested in the purchase of housing by parents, maternity capital funds and the loan amount.

When considering such disputes, the courts proceed from the principle of fairness and are guided by legally established norms, depending on the circumstances of each specific case.

Without children

All property acquired by spouses during marriage becomes their joint property. This is stated in Article 34 of the Family Code of the Russian Federation.

Moreover, part 3 of this article clarifies that the right to common property also belongs to the spouse who, during the marriage, was engaged in housework, caring for children, or for other valid reasons did not have independent income.

Accordingly, a mortgaged apartment also belongs to jointly acquired property and should be divided between spouses in equal shares upon divorce.

Exceptions to this rule:

1. If the apartment was purchased by one of the spouses before marriage, and during their marriage, part of the mortgage loan was paid off. In this situation, division can be made depending on how much of the money the other spouse actually contributed. Often, the apartment is not subject to division at all, and the spouse for whom the mortgage was originally issued pays compensation to the other. If the husband and wife signed a marriage contract in which it was stipulated that the mortgaged apartment remains the property of the spouse who acquired it before marriage, and the second will not in any way claim this housing, the apartment will also not be divided.
2. If one of the spouses has invested a lot of personal funds in such an apartment and can prove it, he has the right to claim a larger share. In this case, personal funds are understood as material goods that were inherited or received as a gift. Salaries, bonuses, interest on bank deposits are considered joint property.

Who divides the mortgaged apartment during a divorce usually depends on the relationship between them. A mortgaged apartment can be divided by a notarized agreement or in court. In any case, you will have to inform the bank about the divorce, and in the event of litigation, even involve it as a third party who does not make independent claims.

How is a military mortgage divided in a divorce

Mostly, courts decide to recognize shares in an apartment as equal when dividing any property, but there is also another position. For example, some believe that an apartment received by a military spouse does not belong to jointly acquired property and is not subject to division.