Sharing Debts in Divorce — How to Share Debts?

In the event of the dissolution of a marriage, not only shared property but also debts are to be divided.

In most cases, they were equally divided, but there were situations that required special consideration.

When a marriage is dissolved, it is necessary to share all the debts accumulated during the life of the couple, taking into account:

• Bank loans for various purposes;
• Mortgage;
• Money borrowed from private individuals.

Pay attention!

The law does not take into account the name of the loan, and the debts of one of the spouses during an officially registered marriage are considered to be common by default.

Under family law, a husband or wife cannot assume all financial obligations by completely freeing the other party from them.

• Misconduct by one of the spouses (e.g. theft);
• The use of family property for the personal benefit of the family;
• Total lack of income on either side;
• The interests of the child.

Debt-sharing

If the spouses agree on the sharing of joint or personal debts, a written agreement shall be drawn up; the document shall list all the payment obligations, the amounts due to each party, the material compensation (e.g. car, share of the apartment, valuables).

In a situation where one of the spouses disagrees with the obligations incurred, the debts are shared through the courts

If the loan has not been repaid, it will have to take into account not only the views of the former spouses but also the interests of the creditors.

They often demand the return of money from the person in whose name the loan agreement has been drawn up; the last thing the creditors are interested in is the debtor ' s marital status, divorce and division of property.

Such issues often arise when a mortgage is divided; the bank that has issued the loan is interested in receiving the money as soon as possible; it is much easier to demand it from a single debtor; the difficulties add to the unequal income of the spouses, especially if one of them is not working and does not have its own funds.

A financial organization can make it very difficult for a formal debt-sharing organization to recover the amount required from the insolvent debtor, which will take into account not only the principal amount and interest, but also the penalties for late payment.

Debt disputes

When a loan is made to one of the spouses, the monetary obligations are automatically transferred to the person whose name appears in the contract.

However, it is not difficult to prove that the money was spent on joint property; it is sufficient to provide a mortgage or consumer loan from general funds.

Strong evidence is the second spouse's signature on a loan contract (e.g. a mortgage).

It is often the case that one of the spouses ' fraudulent debt receipts are issued to a front person and do not imply a real transfer of money; such transactions are carried out with the aim of reducing the share to be divided.

It is difficult to prove the nullity of a forged debt receipt, and in addition to the testimony of witnesses, additional procedures may be required: a definition of the time frame of the document, a handwriting examination, an analysis of the financial situation of each of the parties to the transaction.

Court disputes over debt-sharing require the participation of an experienced lawyer

Counsel with extensive property disputes can represent one of the parties in court, file a lawsuit, assist in the collection of documents; if necessary, the lawyer will appeal the court ' s decision or file a counter-claim.

Personal debts: Features of recovery

Sometimes the money borrowed is spent on the common needs of the family, but often the husband or wife lends the money for personal needs, such as borrowing money for the husband to buy a costly tour and leave without the knowledge of his family.

Personal debts include funds spent on:

• To repair an apartment or machine purchased prior to marriage, gifted or inherited;
• To purchase luxury items and other items for personal use.

To prove that money was spent on personal expenses, it was necessary to confirm that the property for which funds had been spent had been acquired prior to the registration of the relationship and had not been intended for joint use.

Pay attention!

It is not easy to prove it, but witnesses may be required.

Personal debts may also include monetary penalties imposed on one of the spouses as a result of offences (causing material damage, theft, accidents); if the debt is not paid in time, the creditor is entitled to claim the division of family property in order to recover the amounts due from a particular share.

In some cases, the debt incurred prior to the registration of the relationship may be recognized as common

For example, when a mortgage is received and payments made from the general family income are made, an apartment taken on credit prior to the official registration may be recognized as the joint property of the couple; in the case of divorce, it shall be divided and the remaining payments shall be prorated among the former spouses.

According to the UK of the Russian Federation, a spouse ' s debt may be collected only on property belonging to him or her; this role may be played by:

• Property acquired prior to marriage;
• A car purchased prior to official registration;
• Valuable goods and luxury goods that have been gifted or inherited.

The creditor may demand the sale of personal effects through a bailiff.

If the debtor does not have valuable goods and property purchased prior to marriage, the debtor may follow the division of the common property with a personal share to be recovered; and if it is proved during the court proceedings that the other party is not financially liable, its share shall remain inviolable.

Pay attention!

Children ' s interests were also taken into account in the division of property, but their existence did not exempt debtors from mandatory payments.

If the personal property of one of the parties is insufficient to meet the financial obligations, the balance may be recovered from the share received by the debtor in the division of the jointly acquired property; in the absence of available funds, the creditor may initiate the sale of the disputed property without taking into account the views of the parties.

In order to avoid this, an advance agreement specifying the exact time of payment will be drawn up. An experienced lawyer will be able to prepare such a document. Without a specialist ' s advice, a couple may not only lose real estate and belongings, but also retain debts supplemented by late payment fines.

A penalty may be imposed on common property acquired or improved by criminal means; if it has been proved during the proceedings that it was in common use, the penalty shall be applied to all property without the allocation of a share.

Executive summary

The division of debts takes into account not only the obligations but also the subject matter of the dispute; for example, the share of one of the spouses may be reduced in proportion to the payment.

The husband or wife may be completely exempt from payment, but in this case they shall be deprived of the right to a dwelling.

In such sections, representatives of the lending institution that issued the loan are involved as a third party.

The recovery of lost funds would require the assistance of an experienced lawyer, and it was almost impossible to resolve the issue for a citizen who had no experience in court disputes.

How to Share Debts Among Couples

How to split debt between spouses. Average 5 per user

When the common property is divided between the ex-husband and the wife, the issue of the settlement of the outstanding loan or loan is very often raised, with two difficulties.

This is the procedure for determining a common debt and the procedure for negotiating with the bank, and the judges are guided by the articles of the UK, the Criminal Code of the Russian Federation and the NC of the Russian Federation and by a number of federal laws and by-laws.

In particular, the credit institutions ' internal documents providing loans to clients are important.

Total debt

The UK of the Russian Federation determines that in the case of divorce between spouses in 2023, not only joint property but also debt is divided. Article 39 indicates how this distinction is made: in the case of common property, the court determines the amount of shares that are intended for each of the spouses, according to which the total debt obligation is also distributed.

The main problem is the difficulty of defining what debt is considered to be a common one, because the sources of its origin may be quite different. Most debts are the result of credit contracts.

• One spouse is the borrower and takes funds for his or her own personal needs;
• The borrower is one of the spouses, the loan is processed and spent on general needs;
• The loan is granted to both spouses (or one of them is a guarantor);
• The loan is granted to one of the spouses and the borrower is a member of the family but not to the other spouse, etc.

The terms of the loan contract are joint and several liability between the borrowers or between the guarantor and the borrower, a rule that sometimes conflicts with article 39 of the Russian Federation on the allocation of shares.

Therefore, each judicial decision on such matters is taken only after careful consideration of the views of creditors, borrowers and guarantors.

If the judge reached a verdict that conflicted with the loan contract for further repayment, the bank could challenge the decision in the highest court.

Consider what debt will be shared between husband and wife. The determining factor is the purpose for which the loan or loan was made. If the money was taken and spent on the family, it is classified as a common debt.

If the purpose of the loan contract is to purchase household appliances, furniture, family vacations, etc., these are shared needs; they should also include the payment of tuition fees or the purchase of personal property for the children.

As proof of the existence of a common debt between the spouses in 2023, not only the loan contract, but also the commodity cheques, the travellers, and the possession of the property in the family.

Personal debt of one of the spouses

When the property is divided through the court, only the shares of the common property are distributed; this also applies to the debt in the case of divorce, i.e. the personal debt will not be divided by a court decision.

Some difficulties had arisen in the past with the definition of personal debt; if it had been settled before marriage, it would automatically fall into that category; this could only be challenged by the courts, provided that the loan was paid out of the general family budget during the marriage.

But it can happen that a loan is granted only to one of the spouses for personal purposes, which may even be considered as buying a car if the other spouse has not given his/her consent to the loan from the bank.

However, the Supreme Court of Justice of the Russian Federation, in deciding on the debt-sharing case, noted that not all debts arising in marriage are divided in half, because the division of property must be based on article 39 of the Russian Federation, which establishes the principle of equal share, but does not mention debt obligations.

If it is granted only to one of the spouses, it must be accompanied by the circumstances arising from article 45 of the Code of Criminal Procedure, which establishes that the common duty shall be declared if it has been taken and spent entirely on the family ' s needs.

The burden of proof falls on the person who wishes to separate it, i.e. if the borrower is the wife, in the event of a trial, it is up to her to prove that the funds were spent on the acquisition of the common property of the spouses or other shared needs.

Factual debt in the distribution of property

In order to reduce the share of the second party in the common property, some bad faith spouses take advantage of such prohibited practices as the creation of a "fake debt"; for example, the husband or wife conspires to issue a loan contract ex post facto and the purpose of the receipt indicates general needs.

What is a fake debt and how it is shared between the spouses in divorce.

In such a case, the injured party will have to act: first, if a fraudulent loan contract is suspected, it is necessary to insist on an expert examination to determine the date of its actual writing.

Secondly, it may be necessary to examine the financial situation of the couple at the time of the theoretical issuance of the loan.

Thus, the level of income must be determined in order to ascertain whether the conditions for the loan have been met.

If the creditor is not a banking entity, it should be established that there is a link between the "loan" and the second spouse.

If the injured party fails to prove that the loan is false, the debt-sharing in 2023 will end with common property being held liable.

How the Debts of the Couples Are Shared

If the common debts of the spouses are shared through the courts, there are three options:

1. The division of the joint debt is proportional to the shares of the property distributed between the spouses; this principle usually implies equal amounts.
2. Debt-sharing takes into account the views of banking professionals who consent to the distribution of debt between spouses; for example, the monetary obligation may change the number of borrowers by increasing or reducing the number of borrowers; for example, the second spouse is subsequently excluded from the borrowers with the payment of money as compensation.
3. The court, at the creditor ' s insistence, decides not to share the spouses ' debt if there are other borrowers under the loan contract.

Debts not covered

The sharing of debts between spouses will not take into account those arising from the receipt of a loan by one spouse, provided that the other did not act as a borrower and did not consent to the settlement.

Nor do debts relating to pre-marriage loans be shared if the other party does not claim part of the property acquired from the funds received.

Debts arising after the de facto cessation of the couple ' s life and the maintenance of the common household by the spouses are also not divided, even if they formally retained the status of husband and wife at the time of the settlement.

Bank credit section

The difficulty of sharing total bank debts is that, without agreement with the bank, the procedure is problematic. i.e. the judge may, of course, rule, but if it does not satisfy the lending organization, the latter is easily challenged.

Should the first spouse be responsible for the second's personal loans? As a rule, banks are insured, initially including in the contract a clause on future divorce debts, and he will have to follow the parties.

But if there is none, the following means of separation are possible:

• The duty is transferred to one of the spouses;
• Further the debt continues to be paid by both spouses together;
• The loan contract is restructured by two accounts, and each spouse pays their share separately.

Debt-sharing claim

Each of the spouses has the right to file a claim with a court for the purpose of sharing common property and debts, in accordance with the standard rules set out in article 131 of the Code of Criminal Procedure of the Russian Federation.

• Name of institution to which it is made available;
• Basic passport data of the parties;
• The essence of the claims, with reference to the laws in force, which confirm the validity of the claims;
• A rough calculation of the amount of the debt.

The claim must be accompanied by a package of documents that may give rise to the plaintiff ' s rights, as well as copies of the loan contracts and the civil passports of both parties.

On our website, you can download a model application for the sharing of common debts between spouses.

Evidence of debt obligations

It is not difficult to collect evidence for the sharing of common debts if you are careful in the first place about all payment documents, but after the loan contract that sets out the purpose of the loan, it is the main proof, and the very existence of common property is the same.

For example, the couple has new furniture in the apartment, the cost of which does not allow it to be purchased directly from general income, in which case the analysis of the family ' s financial situation will be taken into account as evidence; it is done on the basis of income certificates (2-NFL, 3-NDFL, etc.).

Counter-claim

The division of spouses ' debts through the court may be significantly prolonged if additional expertise is required during the hearing and provided that a counter-claim is filed by the respondent.

A party may do so at any stage of the proceedings, and a document shall be drawn up on the same rules as the main action.

Most often, the reason for the deposit is the reluctance to respond to a second spouse's personal debt obligations.

Voluntary debt sharing

In order to resolve the issue of the division of property and debts, spouses do not have to go to the court; they may, if they so wish, draw up a settlement agreement on the division (art. 38 of the UK).

In such a case, it is up to the parties themselves to share the shares in any proportion they wish, provided that the interests of third parties concerned are not affected; the document is subject to a mandatory certification from the notary.

It may be drawn up both during the marriage and after the divorce.

Judicial practice

• Over the past two years, court decisions on the question of the sharing of common debts have changed significantly, as a result of the explanations given by the Supreme Court of the Russian Federation that there should be no universal recognition of the common responsibility for loans made to one spouse.
• The judge now requires evidence that the loan was spent entirely on common family needs.

In 2023, former spouses may seek judicial assistance or agree with each other in a friendly manner to share their common debts.

Sharing of spouses ' obligations in divorce on debts, loans, mortgages and maternal capital

According to article 34, article 39 of the Russian Federation ' s Family Code, the joint property of the spouses in the course of a divorce must be divided.Share equally(with some exceptions).

Theoretically, debts and obligations are to be separatedIn proportion to the propertythat ex-husband and wife got.

In practice, it is often difficult to separate liabilities.

• If a citizen makes a commitment, he is obliged to settle it, and the marriage is different: the debts of one spouse which he has earned with the permission of another,are considered to be joint.
• Unilateral waiver of general obligationsinadmissible.
• If the spouses have shared the benefits of a loan or loan, then with the acquired obligationsI'm gonna have to work it out together.Even after the divorce.
• The right to share a joint obligation applies to an officially registered marriage; in the event of separation, the common-law spouses have to agree on a division or divide it through a court of law.Proportionally investedThe latter requires incontrovertible evidence.

The obligation-sharing does not occur automatically; in order to initiate the proceedings, the spouse concerned will file a lawsuit or ask the former second half to sign the agreement.

What are the obligations of the spouses to be divided

In the post-divorce division of obligations, the key question is: "Was any of the spouses' funds used?for the benefit of the familyIf the answer is "Yes, even if the other requirements are violated (e.g. the second spouse is not notified before receiving the credit first), the court is likely to appointcommitment section.

• If one of the spouses took credit before the marriage but continued to pay it in the course of family life,not subject to sectionBut the second spouse is entitled to claim a portion of the money paid during the marriage (unless otherwise provided in the marriage contract).
• Property and liabilities acquired after the spouses have ceased to live together and jointly maintain the budget are considered common and are to be dividedin equal proportionsV. Proactive can be achieved through judicial proceedings.
• In the event of divorce, it is to beNotifyA bank or other financial institution to which one of the spouses has an obligation to change the family.

The Luxembourg District Court of St. Petersburg refused to recognize the rent arrears of a studio that had accrued from one of the spouses, a common obligation acquired during marriage, the basis of which was the debt of the husband when he and his wife no longer had a joint budget, although they were still legally married.

Responsibilities of spouses under common and personal obligations

As for the debt, it is common and private, and the spouses, including the former spouses, are liable for the obligations they have made together, or for the obligations of a member of the family with the consent of the other, provided that the circumstances that gave rise to the obligations concerned the interests of both spouses.

Debts relating to jointly purchased property (real property) and other transactions or those arising from injury to others by spouses or their children will be considered to be joint debts.

Not sharedobligations relating separately to theto the personhusband or wife:

• Compensation for damage caused by one of them;
• Maintenance;
• Debts arising from one ' s desire to meet one ' s own needs;
• Debts arising prior to marriage.

The personal debts of one of the spouses shall be reimbursed from their personal property or from the share allocated to them in the event of divorce; only if they are lacking may joint property be used to pay the debts.

Similar to general obligations: they are carried out from common property and, if not enough, from the personal property of either spouse.

A loan that one of the spouses has taken for himself, without agreement with the husband/wife, or with false information, will be considered a personal obligation; such a debt cannot be divided; however, in practice it is very difficult to prove ignorance because it is necessary to prove that the family does not actually live together, nor does the spouses communicate with each other.

Credit liability section

Most often, one of the spouses is a borrower, the other is a guarantor, or gives a written consent to the payment of money to the family; when the obligations are divided through a judicial authority, the judges will not agree that the family loan is paid exclusively by the spouse whose name is on the loan contract.

• Termination of marriageis not a causeThe spouse is entitled to the assistance of the second half not only in the process of marriage but also after its termination.
• Credit liabilitiesSharebetween the ex-husband and the wifeprovidedIf one of the spouses wishes to receive the loan alone, he must take over the balance of the debt (except where otherwise agreed in the voluntary agreement).
• At the same time, the liabilities for the balance of the loan and interest are shared.

Debt-sharing

The obligation to pay loans is divided between the former spouses according to the same rules as the loan debt, which refers to the loan from an individual or entity, but not from a bank.

• Husband and wife after divorceobliged to participatein an equal repayment of the loan if itused for securityThe welfare of the family (including the treatment of one of its members).
• The subject of the loan contract is the payment of his body and only sometimes interest (if the money is provided by a pawnshop), in which the loan is different from the loan: the latter always pays interest.

If money is borrowed from friends or relatives, it is better for all parties to negotiate and conclude an agreement.

Segregation of mortgages

There are two options for the conclusion of a mortgage agreement by the spouses: at the first, both are with borrowers; at the second, one signs a document and the other gives consent; the schemes for the sharing of obligations may be different, depending on the good will of the bank.

• With borrowersmay be separatedBank changes the terms of the contract by entering into a supplementary agreement. Solidarity liability is assigned in instalments to each of the former spouses. Banks do not always agree to the option: they do not wish to lose the opportunity to claim debt from any of the borrowers if the other cannot pay.
• Former spouses may, by general agreement,to request the modification of the treatyThe second loses the obligation to pay the loan, but also to claim housing.
• Another option is:Mortgage housing salesWith the agreement of the pledge holder (bank) with the distribution of the funds received, the question of the separation of obligations is no longer involved.
• During the mortgage process, the bank may require the spouses to enter into a marriage contract with the payer and the recipient of the apartment in the event of a divorce, which is not simply a way of providing for events, but a very strong argument in the division of the debt.

Section of the liability for maternal capital

The maternal capital (MC) obligation is intended to protect children ' s property rights, which arise when the certificate has been invested in the purchase of real property; the recipient of the capital or the owner of the dwelling is obliged to convert the dwelling into the joint property of the family (spouses and children).

• DivorceDoesn't take it off.From the recipient of capitalthe obligation to provide housing on an equal footingFor all members of a broken family, including children, i.e. a minimum of four, an agreement between the spouses may be established in a different way; it is important that the rights of the children not be infringed.
• According to article 10 of the Maternal Capital Act (No. 256-FZ of 29 December 2006), the owner of the dwelling or certificate is obliged to place the apartment/house in common property.6 months maximumOnce the MC has been transferred or the cadastral passport has been issued (a later event).
• In the event of divorce, both parents are required to pay the balance of the mortgage or other loan equally (or by agreement), i.e. each spouse receives a maximum of 1/4 apartments and is obliged to pay half.

Agreement on the sharing of obligations

The ideal option for sharing obligations is a voluntary agreement between the spouses that regulates the division of property and debts, both husband and wife having to agree with each item specified in the document.

• An agreement could be concluded at any stage of the divorce proceedings, even after the application had been made to the court, and judges must be notified of the signed document.
• The agreement does not require notarization (although this option is not excluded), but it is a document that is recognized by law on an equal basis with the court decision.
• The division of property and obligations (or one) into shares by agreement can be arranged by the spouses even while married.

One option of the agreement is a marriage contract, which is allowed to be concluded not only before the marriage is registered but also at any time in the marriage.

The couple purchased a two-room mortgage, entered into a contract with the borrowers, paid the loan, and one year later, the husband filed for divorce.

She asked the husband to enter into an agreement in which she refused to claim ownership of the flat, but also to pay the debts, and the husband applied to the bank for a change in the loan in person.

After the divorce, the former spouses entered into an agreement whereby the husband was given an apartment in Turkey and the wife a three - room apartment in Moscow.

All the properties were taken on credit, the ex-husband voluntarily agreed to pay his debts out of his earnings, and then he changed his mind and sued for the loan portion.

On the decision of the judicial authority, each of the spouses was separated from the property they had agreed to in the agreement, but the payment of the balance of the loan was shared equally.

State in the Section of Obligations

The common debts of the spouses in the division of the court are subject to a duty as would have been the case with the joint property in its physical form, in accordance with article 333.19, paragraph 1, of the Criminal Code of the Russian Federation, the amount of the claim is calculated in proportion to the amount of the claim.

• The State duty is compulsory in the form of services provided by State organizations, including the courts, and is paid before recourse to a judicial body by those spouses who are plaintiffs.
• MinimumThe size of the majesty is 400 rubles.maximum...............................................................The intermediate values are determined as a percentage of the liability.
• There is no State duty to sign an agreement, but only if it is necessary to assure the notary of the agreement.
• If a debt-sharing claim (material) is filed in a single divorce package (non-material), then the duty is paid for two separate claims, i.e. 300 rubles, as a non-material claim, plus an amount equal to the percentage of the debt.

Questions from our readers and the consultant's answers

I pay monthly alimony, I visit the child twice a month, buy him some tasty clothes, sometimes the most necessary, and I suspect his mother doesn't spend the money on his son's maintenance, can I demand that I be relieved of the need to pay alimony, and I buy a certain amount of things for the child?

I don't think you're gonna be able to do that, because the law doesn't provide for other expenses to be set aside, so try talking to the baby's mother and discuss your suspicions.

My husband's been paying alimony for two years, and a few months ago, the baby had a disability.

If the disability causes additional expenses for the child, file a claim for compensation. Please describe in detail what these costs imply, describe the child ' s need for compensation.

How debt is shared in divorce

It is also important to understand that the divorce procedure depends on the ownership of the property in the marriage, the ownership of the debt, and the basis for its occurrence. All these nuances will be discussed in the article.

General information on the division of debt between spouses

Divorce involves the end of a joint union between a man and a woman and the subsequent division of joint property and debts.

The legislator, however, states in article 38 of the UK that it is possible to share debts both in and after divorce.

However, not all debts, but only those that are shared, are divided; although the legislator does not determine what they are, the enforcement practice is based on the assumption that they include debt obligations:

• In which both spouses are borrowers (i.e. the spouses jointly entered into a loan contract with the bank or loan agreement with the creditor and are with the borrowers) or known to both (i.e. the second spouse agreed to the transaction);
• If the money went further into the acquisition of common property (e.g. apartments).

By default, the husband ' s debt is personal until proven otherwise; this presumption is established because, in the event of a divorce, it has become quite frequent for one of the spouses to announce in court a loan that was allegedly spent on the purchase of common property.

However, it was important to document that such a purchase had actually taken place and to prove that the debt was shared.

How to Share Debts in Divorce

Depending on whether the spouses reached consensus or not, two ways of sharing the debts are identified:

1. On a voluntary basis, by drawing up an agreement and approving it by a notary.
2. In a court of law, when spouses are unable to distribute their property and debts voluntarily.

As a general rule, the debts of the spouses are divided in half, unless:

• This is not the case with the agreement concluded between them;
• One of them spent property to the detriment of the family or had no income without good reason;
• There is a need to take into account the interests of minor children.

The manner in which debts are divided is as follows:

1. An inventory of all outstanding debts is being drawn up, with the balance remaining for the period of dissolution of the marriage.
2. The spouses decide in exactly the order in which they will share their debts: they will negotiate and conclude an agreement or they will go to court.
3. If it is an agreement, it shall be certified by a notary and shall enter into force at that time.

The spouses may not only share their debts in divorce, but also agree on the manner in which they will be repaid.

1. One of the spouses buys a share in the property of the second spouse and continues to pay the mortgage.
2. The spouses sell the apartment and share the amount remaining after payment of the debt in half.
3. The spouses sign an agreement with the bank to split the solidarity debt into two individual debts.

How to Share a Credit or Loan

The particularity of the division of the spouses ' obligations under the loan or loan depends on the terms of the contract, the position of the credit institution, the existence of mutual consent and the purpose of the loan.

By default, the general rule of article 39, paragraph 3, applies to debt obligations.

Under this rule, the remaining loan debt must be shared by the spouses in proportion to the shares awarded to each of them in the common property right.

A loan may only be divided without the creditor ' s participation in the proceedings. In order to avoid trial, the spouses may resort to one of the following options:

1. Ask the creditor to separate the obligations of each of the spouses under the contract (there is a supplementary agreement to the loan contract).
2. Add a clause in the joint estate agreement to the effect that one of the former spouses pays compensation (a certain portion of the total payment) to the other (which cancels the credit).

The possibility of seeking compensation for part of the funds sent by the former spouse to repay the loan is confirmed by the decision of the Supreme Court of the Russian Federation of 20.11.2018 No. 18-GC18-201. If a single spouse is a borrower under the contract, it is necessary to prove in court that the funds received are earmarked for the general needs of the family.

This condition was stated by the Supreme Court of the Russian Federation in the Review of Judicial Practice No. 1 of 2016.

Debt sharing by agreement

Family or civil law does not provide for a separate debt-sharing agreement, but this does not preclude the inclusion of debt-sharing provisions in the marital property-sharing agreement.

The document is in writing and is subject to notarial certification.

An agreement on the debts of divorced or former spouses may also be concluded in the context of a judicial process.

In such a case, the court shall approve the settlement agreement before a decision is rendered, subject to written agreements by the parties to the dispute.

All debts are calculated at the time of writing and documented (credit contracts, receipts, loan contracts).

As stated by the Supreme Court of the Russian Federation in the above-mentioned decision No. 18-GC18-201, the terms of the original loan contract cannot be changed without the creditor ' s consent; this rule derives primarily from article 450, paragraph 1, of the Civil Code, according to which modification of the contract is possible by mutual agreement between the parties.

It follows that the parties are not entitled by their agreement to modify the terms and conditions for the granting of loans.

But it is possible to prescribe an obligation by one of the parties to compensate for a portion of the periodic payment by the party that pays the loan.

Post-divorce debt-sharing — case law

A review of the Supreme Court ' s jurisprudence No. 1 of 2016 described the following case: one of the spouses had issued two loans and requested that they be divided as joint partners in equal shares; the courts of first and second instance had concluded that they were, but the Supreme Court of the Russian Federation had made strong arguments that such a finding was not in accordance with the law.

According to the circumstances of the case, the first loan, in 2011, was loaned by a husband and a third person, and the situation was similar one year later, and the spouses had not been working together since 2012.

Moreover, the husband claimed that the money from the first loan was not shared and did not consent to any of the loans mentioned (the latter was not even known).

The legal fact in this case was proof that the money had been spent on general needs, and it must be proved by the person who insisted on sharing the debts; the husband had failed to substantiate his position, and the court had admitted that the debts could not be divided.

Another example of judicial practice is the decision of the Ust-Abakan District Court of the Republic of Hakasia of 25 January 2016 in case No. 255/2016.

The spouses divorced, after which the wife sued the husband for payment of a portion of the loan he had taken prior to the marriage to build the house in which they lived.

The fact of the loan did not deny it, but he did not want to share it.

The wife invited witnesses to the court:

• The father who claimed that the bank had not given his daughter's future husband a loan before the marriage, and therefore the building had to be loaned to her so that it would not stand;
• A professional who heard a conversation about the loan and the fact that he was going to build a common house for the couple.

As a result, the court concluded that there was nothing to divide, since:

• First, the future spouse did not consent to the loan;
• Second, when a woman took credit, there was no agreement between them to transfer the house to joint property in the future.

Thus, it appears that the loan in this case was the wife ' s initiative only, so it is not to be divided.

The parties are entitled to share their debts on a voluntary basis (by entering into an agreement with a notary) and by resorting to a court.

How debts are shared between spouses during divorce and after dissolution of marriage, where obligations are recognized as joint and where they are not

When a family relationship ends, it is not only property that may be the object of the division; in the event of a divorce, the debts incurred during the marriage period are also shared between the spouses.

There is a need for a clear understanding of how joint debts are divided in divorce.

Let's just say that the determining factor here is whether the husband was personally responsible or whether the loan was made for the common needs of the family.

However, the division of the joint property and obligations of the spouses may also be stipulated in a separate agreement between the husband and the wife, in which case other proportions may be established.

How can you share a debt in divorce?

In this case, the case law shows that if money is used for personal purposes and has not been spent on the family, the husband ' s debt in divorce and the division of property is left to him alone.

The Court ' s decision states that the debts are distributed among the former spouses in accordance with the evidence provided.

This is not only about loans, but also about situations where there is a separation between a receipt debt and a loan agreement; this is also true of obligations.

Attention is drawn to the three-year statute of limitations on property disputes, which is not a starting point for divorce, but from the day when the husband learned of his violated rights.

When questions arise about the division of property after divorce and debts before resorting to a court, we recommend that legal advice be provided, and that you call or present your question to a consultant, contact and arrange a meeting.

Can the court share the debts in half?

Such situations are possible, and the court may go beyond the principle of equality and divide property, spouses' debts in a different way, which happens in several cases.

For example, if the second spouse did not participate in the family during the family ' s existence and spent money to the detriment of the family, the redistribution of the debt burden may be necessary when the interests of the minor child so require.

A debt-sharing arrangement is possible when a loan is granted after the formal termination of the relationship, and the spouses do not separate, nor do they live together.

Once again, it should be emphasized that the husband ' s debts cannot be divided if the loan (loan) has been received for personal purposes; however, the plaintiff will have to prove that fact when applying to the court.

And it's important to gather a solid evidence base, and it's possible to work with a lawyer who specializes in divorce.

How debts are repaid after divorce

Suppose a court or agreement determines how common debts are paid for in the sharing of property between spouses, and many more are interested in the technical aspects of the payment of debts.

As a general rule, banks do not renew credit contracts in the event of divorce, which means that the original borrower is formally liable to the financial institution, and that the joint borrower will be required to pay its portion of the payments on a monthly basis.

There is another option, where the debt owed to the creditor is fully closed by one of the spouses; then there is a right of recourse in respect of the share of the obligations owed to the other.

At present, in most regions of the Russian Federation, this is the scenario in which loans are divided in court.

This may be the case for a separate claim and may be referred to the former spouse within three years from the time the debt was fully closed, and it will be necessary to obtain a certificate of repayment from the bank in advance.

The shared debts of the spouses in the division of common property imply that people have the decency to pay their own portion of the payments.

However, it is still necessary to keep an interest in the bank ' s debt condition; if the debt is delayed, the debt may increase significantly by the amount of the penalty.

Key points to be borne in mind when sharing debts

So, we've already talked about the default of the debt taken by the family during marriage in equal shares, and it doesn't matter whose name the loan or receipt is.

Therefore, the court ' s decision must specify the amount and the proportion of each party to the proceedings.

Once the court ' s decision has become enforceable, it is necessary to obtain an executive record, file an application for commencement of proceedings and file it with the bailiff ' s office at the debtor ' s location for enforcement.

Again, if money is used for personal needs or at a time when the relationship has actually been terminated, the debt burden can be avoided.

To that end, care should be taken to obtain a reliable evidence base that would convince the court.

If the husband did not know about the debt of the second spouse, what to do

If the husband ' s debts are identified in divorce, what is to be done in this situation?

The former husband had withheld the loan, and it became known some time later, and a dispute over the debt of the husband in the division of property might be the subject of a counter-claim.

The division of common debts in divorce is rather delicate, so it wouldn't interfere with the use of qualified legal support.

The specialist will provide all necessary advice and prepare all the documents required in this case (suit, motions, appeals, cassation).

In addition, the services of a lawyer can be used when the spouses have decided to sign an agreement on the division of property between themselves for debt; the text of the document will be prepared in a manner that respects the interests of all parties.