How to share an apartment in a divorce taken on a mortgage with children

However, this is not the case, especially if the spouses have property obligations to each other and minor children. Well, if the property is property - personal or joint spouses, but what if the property is in a mortgage? How to share it, who will pay the debt and do common children have the right to claim it? To answer all these questions, it is necessary not only to refer to the legislation of the Russian Federation, but also to take into account a number of additional conditions - when was the apartment purchased and how was it paid? Therefore, we are required to bring all the important points of the procedure for the division of collateral.

It does not matter when the mortgage was taken - before or after the registration of the marriage, the bank must be aware of the change in the status of the borrower, since property rights and obligations under the mortgage agreement may change during a divorce. As a result, the credit institution draws up an additional agreement to the main contract. Both spouses sign it. This option is possible with a peaceful settlement of the issue of division of the mortgage apartment. If the spouses cannot voluntarily divide the property, then the conflict will be settled by the court in the presence of a third party - the bank.

Apartment division rules

Property acquired during marriage is considered joint, regardless of who earned and how much. This rule is regulated by the Family Code, article 39, paragraph 1, and speaks of an equal division between spouses. However, given a number of different family circumstances, the division may not always be equal. Let's consider each case separately.

Mortgage taken before marriage

According to the Family Code, property acquired before marriage refers to personal property and (Article 38 of the RF IC). This rule does not exclude credit property. However, very often in practice it happens when the borrower took a mortgage on housing, paid it for a certain time, and then got married and lives in this apartment with a new family. If the apartment continues to be paid jointly after entering into family relations, then the second spouse, who is not registered in the contract as the owner, has every right to also claim a share of the property, since the family budget is jointly acquired property, which after a divorce is necessarily divided equally between spouses. This rule will be observed even if one of the spouses did not work, for example, he took care of the house and raised children.

As court practice shows, usually the second spouse can claim a smaller share of the apartment, which is equal to his legal half in the total amount of the repaid loan funds from the family budget. The situation is more complicated for . Until the housing is put into operation, it cannot be divided.

Thus, if the apartment was purchased before marriage, the following outcome of the division is possible:

1. The apartment is not divided if it was purchased before marriage and paid.
2. The apartment will be divided if part of the loan was paid off during marriage from the general family budget. But it will be divided in proportion to the invested funds, since the owner extinguished part of it before marriage on his own.
3. The apartment will remain with the borrower, and the second spouse, according to the paid funds claimed by the second spouse, may be paid compensation or transferred other property equivalent to his monetary participation.
4. If the second spouse participated in the payment of the mortgage, then the apartment can be sold or the funds received can be divided in the same way as their investment.

Here it is very important to bring evidence in court that family money was spent on repaying the loan - a check, receipts, account statements, etc.

Mortgage section in a civil marriage

Such a concept as a civil marriage is not provided for by the Family Code, and the residence of two people in one living space is not equated with official relations. And, therefore, the rules of the law do not apply to them. Therefore, everything that they acquire together during their time together will not be divided equally according to the law. It is possible to resolve the issue of division, if each of the spouses of a civil marriage bought any type of property, only by agreement, peacefully. If disputes arise on this basis, then the apartment will be the sole property, that is, the one for whom the mortgage is issued. The only exception can be if you manage to prove that you spent your money on repaying someone else's loan. And then, on the basis of evidence, you can file a lawsuit in court to force the owner of the apartment to either return the invested funds, or to allocate a part of the apartment commensurate with the investment.

If there is a marriage contract

The only case when the norms of the Family Code. A marriage contract is signed voluntarily, after agreeing on all the important points of family life, including the future division after a divorce. It is necessary to prescribe in it all the conditions for the division of property, the procedure for property rights, shares, as well as the possible equity participation of children. You can draw up a contract both before the registration of marriage, and after. Its presence will greatly simplify the divorce process, as well as eliminate possible conflicts during the division. Today, unfortunately, married couples rarely resort to this method of legal regulation of family issues, only 5%.

If there is a marriage contract, a copy of it must be filed with the general loan file in the mortgage bank.

Mortgage taken during marriage

Once again, let us return to Article 39 of the RF IC, which clearly spells out the rule for the division of jointly acquired property between spouses after a divorce in equal shares, and a mortgage apartment is no exception. If the spouses decide to take out a mortgage after registering the relationship, then regardless of whom the loan agreement will be drawn up, the second spouse acts as a co-borrower, that is, if there is a debt, the responsibility for payments falls on his shoulders. That is why he equally applies for this type of real estate.

The division can be made after the full repayment of the debt or sell the apartment with the consent of the bank and divide the proceeds in half. If, after a divorce, one of the spouses is no longer able to pay the rest of the mortgage, then he can refuse the apartment in favor of the second (Article 252 of the Civil Code of the Russian Federation), or after full payment he will automatically claim a smaller share. This issue is quite complex and controversial, therefore, most often resolved through the courts.

How to share an apartment if you have children

This issue is raised quite often, but according to the law, Article 39 of the RF IC, jointly acquired property applies only to spouses, children do not take part here. They can claim an apartment only as a result of the death of their father or mother. That is, the children themselves do not receive any share in the property, but they can mitigate the circumstances during the division if they remain to live with one of the parents. For example, by a court decision, mothers with children can be awarded a large share of real estate (Article 39, paragraph 2 of the RF IC), especially if:

• the child or mother is temporarily or permanently recognized as incapacitated or disabled;
• they do not have their own living space to live after the divorce;
• the husband caused significant damage to the family budget without good reason.

That is, bailiffs may deviate from the generally accepted framework of the law with a view to. This situation is not an isolated case. The main thing is to prove the need for these actions. But this rule by law does not apply to the repayment of credit debt. The rest of the debt, in order to receive their share in the property, both spouses must pay off equally, unless the father himself takes the initiative to take on the greater part, given the financial situation of the mother and child. Then this rule must be documented so that disputes do not arise after the full payment of the mortgage.

Children may also own part of the property if the parents themselves have expressed a desire to include them in the contract. However, you can dispose of your share only after the onset of the 14th anniversary. If the child has a share of the mortgaged property, and remains to live with one of the parents after the divorce, then their shares are summed up.

Credit debt section

As you understand, the division of a mortgage apartment can take place in completely different ways, it all depends on the specific situation, the conditions for the acquisition and the invested funds. With regards to the balance of the loan debt, it is correct here if the debt is divided between the spouses, starting from the property share of each, that is, proportionally (Article 39 Part 3 of the RF IC). If the situation is standard, then, as well as jointly acquired property, debts should be divided equally. This issue is subject to dispute up to 3 years after the dissolution of the marriage, so that you have enough time to fairly share the loan debt and receive the expected share of the apartment.

Spouses have the right not only to jointly manage the common family budget, regardless of who earned more, but they must also jointly answer for existing debt obligations (Article 45 Part 2 of the RF IC).

One of the spouses refuses to pay their share

No less rare is the situation when one of the spouses, after a divorce, cannot or does not see the point in paying the loan further, thereby allegedly relieving himself of this obligation. Although, according to the Family Code, he must do this and does not have the right to make a decision on his own. Otherwise, if the entire burden of the debt falls on the shoulders of one spouse, then property rights can automatically pass to the good payer. If at the same time the objector has nothing against it, then it is better to immediately write a refusal and reissue the loan agreement for one spouse. Such an action occurs only with the consent of the bank.

Another situation is when one of the spouses refuses to pay the loan, regardless of the reasons, but at the same time does not refuse his share, which belongs to him by law. Not everyone who makes such a decision thinks about the consequences. When a large amount of debt is accumulated (sometimes only 4-5 months of non-payment is enough for this), the bank not only sums up the debt, but also charges a penalty on it, and this is not always a small percentage, as a result of which the total loan debt only increases.

If, by accumulating a huge amount of debt, the bank is exposed to great risks of default, as a result of which it may put the property up for sale (after several warnings to the client). The apartment is usually put up for auction, where its price is set below the market price. That is, in fact, the bank sells property at a lower price to compensate for the balance of the loan, and gives you the difference in your hands. As you understand, this difference can be much less than what you paid for the entire time of the loan. Therefore, you will lose in two positions at once - and you won’t get an apartment, and the monetary difference will be significantly less. But if this is the only way to resolve a difficult situation, then the money received after the sale of the mortgage apartment will be divided, either in half, or by agreement between the spouses, depending on the contribution of each when repaying the loan.

military mortgage

Article 36 of the Family Code directly answers this question - targeted state funds, including labor income, do not belong to jointly acquired property, and therefore are not subject to division. It is to this number that the military program, which is aimed at providing housing for military personnel, belongs. lies in the fact that the state allocates 2.4 million rubles for the purchase of an apartment by drawing up a mortgage agreement, and while a serviceman works in the bodies of the Ministry of Defense, he pays for him from insurance contributions, loan payments. That is, if a serviceman complies with the terms of the contract and serves the state all this time, then he gets an apartment free of charge. And this means that this apartment cannot be divided or re-registered for another family member, since transactions of a gratuitous nature are the personal property of one of the spouses. Members of the first relationship can claim it only after the death of the owner.

But, as always, it is necessary to mention rare cases that relate to non-standard situations. Since under the NIS program the state assumes only 2.4 million rubles, and in regional cities this amount is not always enough to buy a good apartment, the spouses could contribute additional funds from their family budget. It is not difficult to prove the fact of an increased amount on a loan. Therefore, the difference will be divided between the spouses when the property is divided in half. This difference can be paid from the owner's personal funds or after the loan is fully repaid and the apartment is sold. It is also possible to replace the cash difference between the funds under the NIS program and the actual cost of the apartment with other property so as not to sell it after full repayment.

Since the apartment under the military program is the sole property, the owner must repay the loan debt on his own.

Mortgage with maternity capital

Article 10 of Federal Law No. 256, paragraph 4 states that. It doesn’t matter which part of the loan was used by public funds - to make a down payment or to reduce the total debt, as a result, the paid apartment is divided equally among everyone, for example, if there are 4 people in a family - 2 parents and 2 children, then everyone gets ¼ parts. Selling real estate and dividing the funds received equally will not work, since maternity capital cannot be expressed in cash, this is strictly monitored by the guardianship authorities and the pension fund responsible for their intended use. If, after a divorce, it is not possible to continue paying on the loan, then the bank, together with the guardianship authorities, may agree to the sale, however, subject to the following conditions:

• that the living conditions of the children will not deteriorate;
• their equivalent shares will be assigned to other real estate;
• smaller housing will be purchased, but without the participation of additional borrowed funds, but at the same time maintaining the allocated area for each child;

If only the parents' share is sold or exchanged for a smaller apartment, with only the children's share remaining, in order to close the mortgage, then permission from the guardianship authorities will not be needed here.

That is, the situation is quite complicated and it must be solved jointly not only by the two spouses, but also with the participation of a banking organization, as well as guardianship authorities. It is good if you use the help of an experienced lawyer in these cases, who will suggest a more competent way out of this situation. Remember that if you decide to circumvent such a situation in a cunning fraudulent way, then the court may invalidate this transaction because of which you will have neither money nor an apartment.

Sell ​​an apartment, pay off a debt, split the rest of the money

We have already considered several options for selling an apartment, starting from the method of buying an apartment. Such a solution to the issue sometimes remains the only correct one, since it is very difficult to divide the shares, it is impossible to live together further, and it is not always advisable to pay the balance on the loan for several more years, especially when there is no actual housing. Therefore, it is better to lose a little on the cost of the apartment, but to get the money that was previously paid for it. To implement such a solution, you first need to obtain consent from the bank. If you find a buyer yourself, you may not lose anything on value by selling for a similar price or even higher (which happens infrequently, since not everyone wants to get involved in the renewal of mortgage rights). If a credit institution deals with the sale, then the price of the property is almost always lower than the market price, since it will be put up for auction.

As you understand, the issue of dividing a mortgage apartment after a divorce remains one of the most difficult, since each case has its own subtleties. If you do not want to lose your legal share of the property, then take this problem responsibly. Familiarize yourself with similar cases of judicial practice, consult with a lawyer and weigh the pros and cons, and only then make a decision.