Partition of a mortgage apartment in case of divorce of spouses

Any property that is acquired by the spouses after the wedding will be considered jointly acquired and divided in half upon divorce. This is clearly provided for in the Family and Civil Codes of the Russian Federation. An apartment purchased with a mortgage will not be an exception, even if your husband was the main borrower, and it is completely owned by him.

Another division procedure is also possible if the spouses have entered into a prenuptial agreement and it indicates how the apartment is divided in the mortgage during a divorce. But in our country this method of legal consolidation of family relations is not popular.

The bank must know about the divorce

How is a mortgage divided in a divorce? The first instance that you must notify about a change in marital status is the bank where the mortgage was issued. At the same time, it is advisable to come to them with a ready-made decision made by you and your ex-spouse. There may be three of them:

• You find the necessary amount of money, pay off the mortgage loan, sell the apartment and divide the proceeds in half. This is the ideal option. In practice, it is not so easy to implement it.

You can still try to negotiate with the bank to sell the apartment, which is in the mortgage. From the proceeds, you can pay off the debt, and divide the rest. There are many nuances here.

Firstly, banks are reluctant to such conditions. Secondly, you are unlikely to gain a large amount from such a sale. And, thirdly, a rare buyer will want to get involved in buying an apartment as a pledge from a bank.

• You decide with the bank on the division of mortgage payments and pay each your share. There are also many nuances here.

Firstly, in the apartment you need to allocate a share to each spouse, and if there are children, to each child. But, for example, in a one-room apartment, this is problematic. Often this issue needs to be resolved in court sessions, and this process is long and tedious.

An apartment in a mortgage is not divided during a divorce proceeding, and its sale can lead to significant losses for two spouses. Thus, it is better to resolve everything amicably, without going to court.

Some facts

There may be no disputes, including with property, if you draw up a marriage contract. This can be done: before the wedding, in the process of family life. However, marriage contracts are concluded by about 5% of citizens aged 35-45 who have already experienced a painful divorce with the division of property.

Secondly, it is not a fact that each spouse has sufficient income and solvency to pay off their part of the mortgage every month. The Bank is very sensitive to this circumstance.

Thirdly, according to the Law "On Mortgage", a share allocated in a dwelling cannot be pledged. Therefore, the bank is very reluctant to take this option. And another important question. For example, you and your husband have separated, and you have two children to live with. A three-room apartment was purchased on a mortgage using maternity capital funds. By law, in this apartment, you must allocate 14 shares to the children after the mortgage is paid off. In this case, the answer to the question of what to do with the mortgage during a divorce and which of the spouses should take on the obligation to pay the mortgage loan for the shares of the children will only be resolved by the court.

• One of the spouses registers an apartment purchased with a mortgage as his sole property, and the burden of repaying the mortgage loan falls only on his shoulders. With this option, the second spouse must necessarily agree with such a decision. The spouse who takes on the mortgage must be solvent in the eyes of the bank.

Perhaps a bank or mortgage organization will offer you their own option. And he has the right to demand immediate early repayment of the loan.

During a divorce, the spouses must understand that the living space acquired during marriage belongs to both, no matter who bought it and who is listed in the documents. Only mutual agreement on an equivalent section will save you from nerves and loss of time.

Still need to pay

Discord in family relationships and the subsequent divorce is, of course, stressful for everyone. But still, you should not forget about your loan obligations. In addition, the question , is one of the most difficult.

At least one of the spouses should act prudently and make monthly payments to pay off the mortgage. Otherwise, you will also have to share the debt for late payments.

If you make a monthly payment on your share (it doesn’t matter if the mortgage apartment is divided between you and your spouse in a court of law or not yet) or in full, then you can always recover the unpaid part of the mortgage from an unscrupulous spouse in court.

By the way, when reissuing a mortgage agreement and changing its terms, the bank will require you to pay 0.5 - 1% of the balance of the mortgage debt.

If the apartment was purchased before the wedding

Only the spouse who entered into the loan agreement will be entitled to an apartment purchased with a mortgage before marriage during a divorce. But the second can demand through the court the reimbursement of half of the money that was spent during the marriage to pay off the mortgage loan.

Some facts

It is very difficult to recover property where minor children are registered. The court will require the involvement of administrative bodies of guardianship, guardianship and the prosecutor's office.

The second spouse may have claims to the specified apartment if the bank was aware of the change in the marital status of the borrower, and the second spouse became a participant in the mortgage as a guarantor.

Mortgage in a civil marriage

Unofficial marital relations are not regulated in any way by family and civil law. Therefore, the owner of the mortgage apartment in the event of separation of civil spouses will be the one for which of them the loan agreement is drawn up.

And if one of the cohabitants does not agree with this outcome, there is only one way - to court. Only in order to win it, you need to enlist the help of very good lawyers. And be patient - proving your claims in such a case is much more difficult than simply agreeing on payment.

Making a divorce in the presence of children is a difficult and lengthy procedure (we talk about all the nuances in detail), but if there are also disputes about the division of property, and even credit, then litigation can drag on even for many months. Having agreed amicably, you will save a large amount of mud, nerves, and money.

Mortgage and divorce of spouses are concepts that are difficult to reconcile. Therefore, when getting married and acquiring housing on a mortgage, you need to think about concluding a marriage contract.

If you still have questions about how to share an apartment in a mortgage during a divorce, then ask them in the comments.