Divorce of spouses with a mortgage. Features of the mortgage apartment section

The presence of an outstanding mortgage loan and the division of real estate burdened with a mortgage adds a lot of complexity to a divorce.

In this situation, the divorcing spouses immediately have a lot of questions. How to divide an apartment that is pledged to a credit institution? Who and in what part should pay the mortgage loan in the future? How to resolve the issue with co-borrowers?

At the same time, each situation has many specific nuances, so there is no unambiguous solution and algorithm for the division of duties on mortgages and collateral real estate yet. Moreover, law enforcement judicial practice has not yet developed precedents that would be guidelines for the courts to make decisions in similar situations.

It is not surprising that in similar cases completely different judicial decisions are made, up to the opposite.

The situation with mortgages is also complicated by the fact that these legal relations affect the interests of three parties at once (the divorcing spouses and the bank), in contrast to the division of property not burdened with a mortgage, where it is enough to reach an agreement only for the former spouses. Therefore, finding a solution that satisfies all stakeholders at once can be much more difficult.

In many cases, when dividing mortgage housing and obligations to repay a loan, the interests of one of the parties are significantly infringed. For example, there are precedents when a borrower deprived of an apartment during a divorce is forced to repay a loan for a long time. Or a bank that wants to sell a mortgaged apartment for which the loan is not being repaid faced the situation that the mortgaged apartment, by a court decision, is no longer considered the sole property of the borrower.

Legal regulation

These difficulties in the division of mortgage housing in the event of a divorce are primarily related to the insufficient legal regulation of this issue in Russian family and civil law.

The courts, when considering cases of divorce, where the issue of mortgage is affected, are guided by the Family Code, the Civil Code and the Federal Law “On Mortgage”, as well as the mortgage agreement drawn up between the bank and the borrower.

The basic principle of the division of mortgage property in a divorce, as set out in the aforementioned legal acts, is that:

• residential premises acquired by spouses during the marriage at the expense of mortgage funds are jointly acquired property, which entails appropriate legal consequences;
• the joint property of the former spouses must be divided in half, unless a different procedure is prescribed in the marriage agreement;
• when dividing property acquired by spouses with borrowed funds, including a mortgage apartment, it does not matter at all who the mortgage loan was issued to.

Financial obligations to the bank are also assigned equally to divorced spouses, regardless of whether they acted as co-borrowers or the mortgage was issued to one of them.

Thus, based on the requirements of Russian family law, the fifty-fifty principle applies when dividing any joint property of the spouses. However, in practice, dividing a mortgaged apartment in half is quite problematic, since the housing is pledged to a credit institution, and the owners cannot take any legal actions with it.

How to avoid partition problems

Most conflicts and disputes related to a mortgage apartment can be avoided by pre-marital agreement. Russian legislation allows you to draw up a marriage agreement both before the registration of the family, and during the period of family life. Nevertheless, statistics show that, despite all the advantages of marriage contracts, no more than 5% of Russians draw up such contracts.

Another important legal guarantee that is used to protect the interests of all parties to a mortgage is the mortgage agreement. Currently, credit institutions, which have repeatedly encountered problems in the payment of mortgages by former spouses, have gained quite solid experience in litigation of mortgage disputes. As a result, mortgage agreements executed by banks minimize the lender's risks in the event of a divorce of the borrowing spouses.

The vast majority of banks try to make both spouses co-borrowers on a loan, which, in principle, is beneficial for the married couple itself, since you can combine income and get a large loan amount.

In addition, many banks began to include an important condition in their mortgage agreement: “In case of termination of family relations between spouses-co-borrowers, the terms of the mortgage agreement do not change.” A similar clause of the contract is additional insurance for the bank. If the spouses who agreed to this term of the mortgage agreement divorce, and one of them refuses to pay the mortgage, then the financial responsibility for payments will completely pass to the other.

Such a legal guarantee, unfortunately, protects only the interests of the bank, and divorcing spouses will still have to defend and protect their interests.

In fact, divorcing spouses have only three options:

• continue to pay the loan;
• find the missing cash money and pay off the mortgage ahead of schedule. After that, you can sell the apartment at a bargain price and divide the proceeds in half or by agreement of the parties;
• sell a mortgage apartment with the consent of the bank.

To carry out the division of a mortgage apartment, you can contact the credit institution that issued the mortgage directly with a request to approve the sale of a common matrimonial apartment.

It is difficult to predict the reaction of a particular bank to such a proposal. A credit institution in this situation can:

• agree to the sale of a mortgage apartment;
• demand early repayment of the mortgage by the spouses, justifying this by the fact that the upcoming (or already registered) divorce violates the agreed terms of the loan agreement;
• oblige the spouses to pay the mortgage without selling the apartment.

In many cases, the bank agrees to the sale of the mortgage apartment, as this reduces the risk of non-payment of debt by divorced spouses. If the consent of the bank is obtained, the spouses need to find a buyer for their mortgage housing who agreed to purchase an apartment with an encumbrance.

In this situation, the buyer, in order to take ownership, must first compensate the bank for the amount of debt on a mortgage loan and wait until the entire process of removing the encumbrance from the purchased apartment is completed.

Of course, not all buyers will agree to such a difficult option, as risks increase and time is delayed. Therefore, divorced spouses who want to sell a mortgage apartment often have to reduce the price of their housing in order to interest a potential buyer.

Regardless of the development of the situation with the sale of an apartment by a divorced spouse, you need to continue to make payments on a mortgage loan. Otherwise, the situation can only worsen. A bank that does not receive payments on the loan has the right to sell the mortgaged apartment at an auction, and the price of the sold housing, as a rule, is much lower than the market price.

From the proceeds from the sale, the credit institution will keep the principal debt, fines, penalties, unpaid interest and expenses for organizing auction sales, and only the remaining amount will be divided between the former spouses. As a result, you can be left without housing, and without financial compensation.

Another important rule when divorcing persons who are borrowers of mortgage funds is to notify the credit institution of the divorce. Under the terms of any mortgage agreement, borrowers are required to immediately notify the bank of significant changes in their lives, including divorce.

If the parties to the mortgage agreement fail to agree, you need to go to court. As already mentioned, there is no unambiguous development of the situation in the trial. The court can force a credit institution to perform transactions with a mortgaged apartment, oblige to reissue a mortgage agreement for one of the divorced spouses, oblige the spouses to continue payments until the loan is repaid. Other solutions are also possible.

If the spouses decide to pay off the loan in order to then sell the apartment, it is possible to divide the mortgage property into shares during the divorce period. To do this, they need to apply to the creditor bank with an application.

However, problems and pitfalls are also possible here. For example, the bank will refuse such an option. He may not be satisfied with the income of one of the spouses, who, when registering shared ownership, must act as an independent borrower. Or a mortgage on a one-room apartment, the division of which into shares in kind is not possible. Such property, according to the Federal Law "On Mortgage", should not act as an independent subject of mortgage.

The refusal of the bank can also be appealed to the courts.

Another version of the division during a divorce - one of the divorcing spouses, free of charge or for monetary compensation, signs a waiver of his share in the common housing, burdened with a mortgage, and the other agrees to take on all payments on the mortgage loan.

If the bank is satisfied with the solvency of the second spouse, then the transfer of ownership of mortgage housing is registered with the territorial registration authority. As a rule, the bank charges a fee for reissuing a loan agreement (0.5% - 1% of the remaining debt).

Marriage registration means that a full-fledged family has formed, sharing all responsibility equally, including for a mortgage loan. When buying an apartment in a mortgage, you can arrange it for one spouse, or. We will consider in detail the first option, in which there is a main borrower and a co-borrower.

When determining the maximum loan amount, the income of the other spouse is automatically taken into account. Also, the family can involve third parties - parents, other relatives, colleagues and friends, but no more than two or three people. It is they who are co-borrowers - full participants in the mortgage along with the main borrower.

Regardless of who owns the purchased apartment, it rightfully belongs to both spouses, therefore, all the burdens of repaying the loan will have to be borne together. But this does not mean that after a divorce, you need to pay off the debt for or. A loan, like an apartment, is divided in half. It is from this share, but no more than that, that the bank has the right to demand money from you.

Withdrawal from co-borrowers

Obligations of a co-borrower under a mortgage agreement:

• Ensure timely payments to the bank;
• Be responsible for delinquent mortgage debt.

These encumbrances occur only when the principal debtor cannot continue to contribute funds. The refusal of the borrower to pay the mortgage after the divorce is not such a reason. To protect yourself from a risky transaction, you can take out insurance coverage.

There are several ways to get out of co-borrowers on a mortgage after a divorce:

• According to the mortgage lending agreement;
• Under the terms of the marriage contract;
• Re-issuing a housing loan;
• Through the court.

With the help of a contract

The rights to an apartment or the obligation to repay a loan in the event of a divorce can be spelled out in an agreement with a bank. If there is such a clause, then after that it is necessary to notify the creditor and make changes to the papers.

Through a marriage contract

The situation of exit from co-borrowers is sometimes provided for by the marriage contract. On its basis, you can easily remove the burden after the official dissolution of the marriage.

Mortgage renewal

Some banks go forward and change the terms of the mortgage agreement. To do this, you must contact the office of the creditor with the appropriate application. The bank has ten days to make a decision. If you refuse, you can go to court.

court order

Disputable situations are resolved through the court when the bank fulfills the terms of the contract in bad faith, or the borrower has accumulated an impressive debt.

Controversial issues and their solution

Situations when a co-borrower of a mortgage after a divorce does not pay the bank are quite common and not unreasonable. To avoid conflicts, follow these tips:

• Find out the claims of each for an apartment (if the other party does not claim a part of the property, you need to renew the mortgage agreement for one person);
• If you decide that you will pay jointly, draw up an agreement and certify it with a notary;
• In the event of a complete rejection of the encumbered property by both spouses, contact the bank that will sell it at auction, and the due compensation will be divided in half;
• You can pay off the mortgage early and sell the apartment.

Watch helpful video

Engagement of third parties

To increase the chances of withdrawing from co-borrowers, you can offer an alternative - change the person responsible for payments. For example, in Sberbank, the requirements for this person are as follows:

• Age over 21;
• Permanent place of work (at least 6 months);
• Registration in the region in which the loan was issued.

Cancellation of a mortgage

If the husband or wife, who are co-borrowers, refuses to pay the mortgage after the divorce, then the following options are possible:

• Payments under the contract are separate, therefore, everyone is responsible for their share of the debt;
• Payments are joint and you will have to pay the debts of the second spouse;
• There is a formal agreement.

The co-borrower has the right to re-register the mortgage for himself after the divorce, if the main owner refuses credit obligations and does not claim the apartment.

You can opt out of a mortgage guarantee after a divorce in the following cases:

• Closing debt on a loan;
• Changes were made to the contract without the consent of the guarantor;
• When transferring a debt to another person;
• After the expiration of the guarantee period;
• If the creditors have not had claims against the guarantor within two years.

For early termination of obligations, it is necessary to apply to the bank with an application to revise the contract. If the creditor refuses to make changes, you will have to protect your rights through the courts.

Often, couples reach a dead end, and the only way to solve relationship problems is divorce. The current situation becomes even more dramatic when the question arises about the mortgage on real estate issued by the spouses. Separating spouses want to get a divorce and have nothing more in common, but a divorce mortgage does not give them such an opportunity. More often than not, this issue cannot be resolved amicably. After all, the bank that issued the mortgage to the family has no emotions, it is focused only on practicality.

Mortgage and divorce: how to divide mortgage real estate during a divorce without nerves and problems? In this situation, the spouses may have a lot of questions about how to share a mortgage apartment and who will pay the loan during a divorce. It should be noted that each individual case has its own characteristics. At present, there were no precedents in domestic judicial practice that judges could be guided by when making decisions in similar situations. Even similar cases have completely different verdicts from the judges.

As a rule, during the divorce proceedings with the division of mortgage property, the interests of one of the former spouses or the creditor are infringed. It is quite difficult to find a golden mean in such disputes. As a result, the bank takes the mortgaged apartment, on which they stopped paying the mortgage. At the same time, the borrower who has lost his apartment and has to pay the debt for many years also suffers.

Although it is not easy to divide an apartment in a mortgage, it is quite realistic. When parting, each spouse must be aware that any property acquired during the marriage is their mutual property, despite the fact that it can only be issued to one person and to the one who paid the mortgage on the property. If the wife of the borrower was not employed and did not receive income, she has the same rights to an apartment as the spouse who independently paid the debt, having the required level of income to obtain a mortgage.

Real estate division methods

There are several options that allow you to share an apartment that is in a mortgage during a divorce. The first method is the most popular and easiest. Former spouses sell the apartment and pay the bank the debt from the amount received. The funds that remain after the repayment of the loan debt, the spouses divide among themselves in equal shares.

The next option is to split the mortgage payments between the ex-spouses equally. In this case, each of them will pay only their share.

Sometimes former spouses agree that one of them remains the owner of the home, while compensating for the cost of the second spouse's share of the apartment.

Usually, legislation does not allocate ownership of individual rooms to owners, since certain conditions must be met for this, and, as a rule, they are not in typical apartments. In the event of problems in the division of real estate under mortgage, the court has the right to establish a certain procedure for the use of housing.

What does the court take into account when making a decision? Usually, when dividing apartments that are in a mortgage, the court is directly involved. In doing so, it takes into account the following factors:

1. Who is the owner of the apartment?
2. Who paid the initial fee?
3. Are there children under the age of 18 among the owners?

If minors have rights to an apartment, then their rights should not suffer. The court assigns most of the apartment to the one with whom the child will live together after the parents divorce. Most often, one of the spouses brings more income, and therefore he pays a significant part of the mortgage debt. However, this does not mean that this particular person will have the right to property in the division of real estate.

If during the registration of a marriage a marriage contract could be drawn up, which, as a rule, prescribes the procedure for dividing mortgage property during a divorce, then it will be almost impossible to derogate from the terms of this agreement. There are cases when banking institutions offer borrowers to sign an agreement in which a divorce cannot affect the payment of a loan debt.

It often happens that spouses make changes to the mortgage agreement and sign additional agreements. For example, one loan can be divided into two smaller loans. But banks rarely offer such conditions.

The main nuances of a mortgage during a divorce

Often, when making a marriage, one of the spouses already owns real estate taken in a mortgage. After marriage / marriage, the borrower makes payments, as before. In this situation, he will remain the full owner of the home even with a divorce. At the same time, the other spouse will be able to claim those mortgage payments that were made to repay the loan after marriage, since these payments were made from the family budget. If people took out a mortgage on an apartment or plot, it will be divided between divorced spouses.

You can avoid misunderstandings when dividing a mortgage apartment during a divorce. To do this, the borrower must inform the bank about marriage, registering his spouse as a guarantor. In this case, the second spouse is also responsible for credit obligations. There is another option: you can draw up a marriage agreement (contract), noting in it the nuances regarding the mortgage, including divorce.

If one of the spouses proves that a certain part of the loan, for example, the first installment, was paid by him at his own expense, then the court will divide the apartment, increasing the share of this person in proportion to the amount he contributed.

Currently, not all families want to formalize their relationship. This does not prevent them from running a joint household, having a family budget, raising children, etc. At the same time, according to the law, such families are not official. Therefore, the norms and laws of the Family and Civil Codes do not apply to them. In such families, it is not easy to divide mortgage real estate. Usually in such a situation, parting people spend a lot of time on the division of property and resort to the help of lawyers, repeatedly going to court. The right of ownership and obligation under the loan remains with the spouse who issued the loan, and it does not matter who repaid it.

Underwater rocks

The presence of a mortgage during a divorce can cause a lot of trouble for the parting spouses associated with the division of such real estate. If there is a mortgage, then in case of a divorce, it is better to immediately contact a specialist or think through all the points regarding the mortgage even before the start of a life together.

Before you start dividing mortgage real estate, you should remember a few key points. For example, an apartment purchased before marriage belongs to the spouse to whom it was originally registered. But payments made during the period when the family lived in marriage are considered joint. Therefore, the second spouse in the event of a divorce is entitled to receive monetary compensation or an appropriate share of real estate. At the same time, it is important to understand that it will be quite problematic to prove from what funds (personal or general) mortgage payments were made.

The situation can become even more interesting if the apartment was purchased in a house under construction. For example, a borrower made a down payment on a mortgage, paid off a mortgage loan, and before the new house was completed, he got married. In this case, the owner may lose half of the living space, since the ownership of the apartment was registered when he was married, and the apartment will be considered jointly acquired real estate.

Things to Consider When Dividing a Mortgage

Divorce and mortgage: what points should you pay attention to? There are cases when the money for the first installment is donated to the newlyweds by their parents or the money for the down payment is taken from the sale of a room or cottage inherited by one of the spouses. According to the law, each spouse who has received property as a gift or inheritance is its owner, and this property is not considered to be acquired during marriage. In order to prove the fact of paying the mortgage with funds received as a gift or inheritance, all actions carried out with them must be documented. It would be optimal to transfer money, for example, from the inherited room from a personal account to the seller's account, then send it through the bank to pay the down payment or loan. But since in Russia many people prefer to make payments in cash, it is very difficult to confirm in court that the purchase of real estate was carried out with those funds.

Remember, if the marriage between the spouses was not formalized, it will not work to claim the division of property during a divorce. Ownership and credit obligations under a mortgage arise only from the person for whom the loan is issued. Currently, some banks have begun to issue mortgage loans to families living in a civil marriage.

A prenuptial agreement in most disputable situations helps to avoid problems. You can discuss all the nuances in advance, including the division of the mortgage during a divorce, by drawing up an agreement before marriage or during it.

In our country, only 5% of the population agree to marriage contracts. As a rule, these people are about 35-45 years old and they already know what divorce is, and have experienced all the delights of the division of property.

Welcome! Our readers are often interested in the question of how the mortgage is divided when the spouses divorce. Statistics show that more than half of marriages in Russia end in divorce. By the time of the break, most families manage to acquire jointly acquired property, including housing, taken on credit. When a person who has taken a home loan gets divorced, he faces big problems related to the division of the acquired property. A mortgage during a divorce becomes one of the stumbling blocks between already former spouses. Questions "How to share an apartment?" and “How to renew a mortgage?” become even more important if there are children whose rights also need to be taken into account. There are a lot of nuances that affect the division of a mortgage during a divorce. Let's take a closer look at the main points.

How the mortgage apartment is divided during a divorce depends heavily on the time the loan was issued. The conclusion of a loan agreement before or after the official registration of marriage will affect the legality of the division of the acquired property upon termination of family ties.

Mortgage before marriage

Divorce with a mortgage taken before registering the relationship with the registry office is one of the easiest options. If one of the spouses purchased housing on a mortgage before marriage, then he remains the sole owner of the apartment and will pay the balance of the debt on his own. The second spouse can claim a share in real estate or a compensation payment if he can prove that during his family life he participated in the payment of monthly loan payments or at his expense the apartment was renovated.

According to the law, all debts and property are divided equally between the spouses, so it is quite realistic to file a claim with the court for compensation to the spouse who has no property left.

Mortgage section in a civil marriage

According to Russian law, people living in a civil marriage do not have obligations to divide property after the termination of relations, as in a divorce in a registered family.

Housing acquired during the period of cohabitation will remain with the one who owns it according to the certificate of ownership.

A mortgage before marriage can be officially divided between former lovers only if the apartment was registered for two, and the civil wife and husband were co-borrowers.

Mortgage during marriage

A home purchased during a marriage automatically becomes the joint property of both spouses, even if only one owner appears on the title deed. If the apartment was bought on credit, taken by one of the spouses, then the second in the vast majority of cases is a co-borrower. Thus, both receive joint and several liability for the return of the debt to the creditor. When family ties are dissolved, all property is usually divided equally. The question of how to divide an apartment in a mortgage can lead to a dead end , especially if the divorcees have a decent debt to the bank.

• If the spouses maintained a good relationship during the dissolution of the marriage, then the already divorced can continue to pay the mortgage together. But you still have to notify the bank of the divorce, especially if this item is spelled out in the mortgage agreement.
• Former spouses in most cases prefer to divide the property and monthly payments into equal shares. However, today banks very rarely decide to re-register mortgages, because they risk getting two overdue loans instead of one. Moreover, in the event of a divorce, the bank may demand that the entire amount of the debt be returned ahead of schedule.
• You can pay the debt to the bank, and sell the apartment and divide the money in half. If the balance of the debt from the mortgage to the bank is small, then this will be the best solution to the problem.
• One of the spouses can refuse their share in the apartment. In this case, banks are going to withdraw it from the mortgage agreement, with the financial ability of the second to make monthly payments on time.

If the apartment was purchased during the marriage, but personal funds in bank accounts or inherited were used as a down payment, then if there is sufficient evidence, the spouse who actually bought the house with his own money can expect to remain its sole owner. Upon divorce, the mortgage will be left to him, and the second spouse will be compensated in the amount of half of the monthly payments paid during the period of cohabitation.

A special situation arises if housing was purchased under the Military Mortgage program. According to its terms, the owner of the apartment, as well as the borrower on the loan, can only be a military man. After the divorce, his family members will not be able to claim square meters in such a living space, which is contrary to the provisions of the Family Code. Banks solve this problem by introducing a clause in the mortgage agreement on the mandatory conclusion of a marriage contract between the spouses.

The effect of having a prenuptial agreement on mortgages in a divorce

Divorce in the presence of a mortgage can be significantly delayed. Spouses co-borrowers are able to speed up this process by prescribing how to divide credit housing and who will pay the mortgage after a divorce in a prenuptial agreement.

A marriage contract certified by a notary can be drawn up both before marriage and during family life, including after buying an apartment on a mortgage. In the latter case, be sure to notify the bank of its signing. To challenge how the mortgage is divided after the divorce of the spouses under the marriage contract, the credit institution can only in court.

In most cases, banks require you to sign a prenuptial agreement before applying for a mortgage. Most often, this is due to the fact that one of the spouses interferes with a positive decision on the mortgage. The main reasons may be:

• Bad credit history;
• Debt load;
• Lack of official income of the spouse and, as a result, the general insolvency of the family.

This prenuptial agreement prescribes everything that can happen that is important for the bank, namely:

• The second spouse waives the claims. the division of the apartment into a mortgage during a divorce will be in favor of the main borrower.
• Refuses to commit, and is not responsible for the payment of drips.

Algorithm for dividing a mortgage during a divorce

To figure out what to do with a mortgage during a divorce and how to divide it between a divorcing couple without a trial, we will draw up a step-by-step algorithm of actions:

1. If the mortgage was issued during marriage and the spouses decided to divorce, then they need to conclude an amicable agreement on the division of the apartment and the rest of the debt;
2. With this agreement, the borrowers are sent to the bank's credit manager dealing with mortgage issues. This should be done after the official registration of the divorce. The bank will need to provide a mortgage agreement and certificates of income of each co-borrower for the last six months;
3. If the lender makes a positive decision on the division of the mortgage, two new mortgage agreements are drawn up for each of the borrowers and adjusted payment schedules are issued. For reissuing documents, you will most likely have to pay a commission of 1-2% of the debt amount. Or one of the co-borrowers is removed from the list of debtors and loses the right to real estate.

It should be remembered that banks do not like to take risks. The situation when co-borrowers on a mortgage get divorced is not in itself a reason for them to divide payments and the balance of the loan into two parts or to remove the spouse from the list of borrowers. It is extremely difficult to get approval for such a deal. Therefore, it is advisable to discuss in advance what to do if the bank refuses to change the terms of the contract.

What will happen to the mortgage in case of divorce of spouses with minor children

Mortgage for divorce of spouses with children , as well as jointly acquired property, can only be divided by the court. The mortgage apartment is divided taking into account the interests of minor children.

An apartment in a mortgage during a family divorce, where there is a child, can be divided between the spouses only if it consists of several rooms. A one-room apartment in a mortgage during a divorce cannot be divided, since it is impossible to allocate shares in kind. If a husband leaves his wife with a small child in a one-room apartment, he may be paid part of the cost of housing in the form of compensation.

What are the options for the section if the apartment is in a mortgage during a divorce there is a child:

• When he refuses a share in the apartment, banks draw up the debt remaining on the loan to the former spouse only if she has enough funds to pay the payments. If the ex-wife cannot pay the loan, then even if there are no claims for housing, the husband will remain among the co-borrowers and will be forced to pay mortgage payments.
• The one who stays with a minor child most often gets a large share of the living space. The court can divide the mortgage equally, or in proportion to the shares in the property. In the presence of certain circumstances (the mother is on maternity leave, disability or temporary incapacity for work), with the consent of the creditor, the share of the spouse staying with the child in the monthly payment can be reduced. Alimony and mortgages will become the responsibility of the second parent for a time set by the court.
• Mortgages and minor children can be linked with the help of maternity capital. After the birth of a second child, many families use the received subsidy to partially pay off mortgage debt or to make a down payment. In this case, the obligation of parents to introduce children into the number of owners of the apartment arises. In the event of a divorce, the share in the apartment of the parent staying with the children will be increased from the children's shares. The loan debt is likely to be divided equally between both parents, since they are both responsible for the maintenance of joint children.
• After the divorce of the spouse and the division of the mortgage, the mother can repay her part of the debt with maternity capital. But she will not be able to dispose of her part of the apartment until the rest of the loan is fully repaid by her ex-spouse.

Refusal to pay debts by one of the former spouses

If a parting husband and wife do not agree on how to pay the mortgage during a divorce, then if one of them refuses to pay monthly payments, there is an increase in overdue debt. If the delay is more than three or four months, the creditor has the right to take away the mortgaged housing in order to sell it and pay off the debt.

Often a situation arises when co-borrowers on a mortgage divorced, and the apartment remained with one of them. A former spouse who left the apartment may refuse to pay his part of the payment to the bank, referring to the fact that he does not use housing. If at the same time he refuses his share in the apartment, then the mortgage after the divorce, with the consent of the bank, can be re-registered for the remaining borrower.

If the ex-husband or wife refuses only the obligation to pay the debt, then the second spouse will have to pay off both parts of the payment on their own or wait for bank sanctions for late repayment of the loan. Banks usually wait several months, accruing interest on the overdue amount, and then they will take the apartment and put it up for auction.

The selected apartment can be sold at a cost significantly lower than its market price. The proceeds from the sale will pay off the balance of the mortgage debt, including penalties and late fees. The remaining amount will be returned to the co-borrowers. As a result, a conscientious payer may be left without housing and without money.

How else can you deal with housing in a mortgage during a divorce

Dividing money during a divorce is much easier than housing. Therefore, spouses may try to sell a mortgage apartment. To do this, you will need to obtain the consent of the bank and find a buyer who agrees to purchase real estate under encumbrance. Since buying an apartment in a mortgage is a rather lengthy procedure, the buyer will have to compensate for the loss of time with a decent discount from the market value.

Cohabitation after a divorce is rarely liked by anyone. If you can’t sell an apartment and divide its cost to buy another home, you can move to rented housing and wait for the mortgage to expire. True, without the approval of the bank, the owners will not be able to rent out the apartment. This means that you will not be able to pay off a housing loan at the expense of rent payments. But this requirement of the bank is rarely actually applied. Mortgage apartments are rented without problems.

Today, the fate of housing bought on credit and the balance of the debt for it to the bank is most often decided in court. Arbitrage practice , formed by the division of an apartment purchased with a mortgage, during a divorce, is rather ambiguous.

Decisions made by courts located in different regions can be diametrically opposed. The result largely depends on the legal knowledge of the spouses or the talent of a lawyer. Therefore, choosing a mortgage as a method of acquiring a family home, one should think over and foresee any scenarios in advance.

If you need legal support with divorce and mortgage division, then sign up for a free consultation with our online lawyer in a special form in the corner. Until the end of the year there is a special promotion. With its help, it is quite possible to receive compensation from the spouse and keep the apartment for yourself and protect the interests of children during a divorce.

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The divorce procedure is deservedly considered a difficult event from a legal and organizational point of view. Even more complicate its implementation may be the presence of an apartment acquired as a result of a mortgage loan. The legislation in force in Russia in 2018 provides for several ways to divide property obtained in this way.

At the same time, several factors influence the choice of a suitable and satisfactory way out of the current situation. The most important among them are:

1. the fact of marriage registration;
2. the presence of a marriage contract;
3. provisions of the contract for obtaining a mortgage loan;
4. the presence of minor children;
5. future plans of the spouses and the possibility of paying the mortgage;
6. bank position.

Of course, not all the factors that influence the choice of a method that allow dividing the property of the spouses in the form of an apartment purchased with a mortgage during a divorce are listed above. However, it is they who most often determine the final decision in practice. Therefore, it is advisable to consider them in more detail.