How to refuse a mortgage during a divorce. Mortgage in case of divorce of former spouses: ways to get rid of co-borrowers. Where to start the divorce process

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Relentless statistics indicate a high percentage of divorces: up to 18% of families break up in the first three years.

By the time the relationship officially broke down, many families had acquired children, property, and an apartment with a mortgage.

The problem is quite urgent. The division of a mortgaged apartment during a divorce often raises many questions and disputes. We’ll figure out how to do this in 2019 further.

This word is "Divorce"!

If both spouses have finally decided to separate and decide what to do with the mortgage during a divorce.

The time when the mortgage loan for the apartment was concluded is important.. There are several options here.

If the mortgage was taken out before marriage, it is usually easy to resolve. After the dissolution of the official marriage, the apartment will be given ownership to the spouse who bought it before marriage. He will pay the remaining debt to the bank.

The second spouse cannot claim real estate, even if he lived in this apartment. He can satisfy his claims in monetary terms.

To do this, you need to document that you participated in mortgage payments and made repairs at your own expense.

But the same Family Code states that the other spouse has the right to a share in the apartment, because payments to repay the debt to the bank came from the general family budget.

In this case, a person does not have to work: the salary of one person is considered total income.

What the court's decision will be depends on the evidence base (receipts, checks) and the level of experience of the lawyer.

Division of an apartment in a civil marriage

This is the easiest option.

The apartment with all mortgage obligations is owned by the person who borrows from the bank for this apartment.

Mortgaged real estate may fall under the division of property if former cohabitants are co-borrowers of the mortgage.

The question of how a mortgage taken out during a marriage is divided in a divorce is more complex than others and is often aggravated by factors that slow down this process.

Any acquired property purchased during marriage is considered joint property.. Moreover, it does not matter which of the former spouses is recorded in the certificate of ownership.

But in most cases, the bank, trying to protect itself, takes the second spouse as a co-borrower. Thus, in the event of a divorce, both spouses receive the same debt obligations to the bank.

If there are no other factors influencing how the mortgaged apartment is divided during a divorce, the process occurs according to several scenarios:

1. Former spouses can enter into a separation agreement in which they continue to pay the mortgage together until they have paid it off in full. They both continue to be owners of the apartment. But the bank itself should be notified that the divorce process has taken place.
2. The second method is the most common. Former spouses want to renew the mortgage and choose to divide the apartment into equal shares and share the mortgage debt equally. The bank is reluctant to enter into such transactions: after all, instead of one loan, it receives two at once. Moreover, there is a risk of non-payment on the part of borrowers. Sometimes the bank demands that the debt owed to it be repaid in full if the spouses divorce.
3. The third option is suitable for those who have a small mortgage debt. With the permission of the bank (it is pledged to the bank until the mortgage loan is repaid), the apartment is sold, the debt to the bank is repaid, and the remaining amount is divided in half between the former spouses, the owners of the apartment.
4. Sometimes they occur when one of the spouses renounces his share in the apartment, which means he gets rid of debt obligations to the bank. There is a catch - the bank may not approve such a way out of the situation, since the spouse to whom the apartment goes may not be able to cope with the payments alone due to low income.

Despite how exactly the ex-spouses want to resolve the issue of what to do with the mortgage in a divorce, everything depends on the opinion of the bank.

He is not obliged to change the terms of the agreement if the co-borrowers (part-time spouses) are going through divorce proceedings.

The court will take into account the opinion of the bank as a third interested party.

When purchasing an apartment with a mortgage during marriage, it is possible to use personal funds lying in the bank account of one of the spouses since the premarital period as a down payment.

In the event of a divorce, he may demand their return or become one owner of the home. The second person receives compensation in the amount of half of the mortgage loan paid during the marriage.

Factors influencing the process of dividing a mortgaged apartment

The options for dividing an apartment with a mortgage are discussed above, which are quite easily resolved by the former spouses themselves through an amicable agreement or decided by a judge if there is a claim by one of the parties.

Difficulties arise when a family has children, the mortgage was issued on special conditions: with maternity capital, a marriage contract or a military mortgage.

When spouses and children divorce, the mortgage is often divided in court. The presence of minor children influences the court's decision on the division of the apartment under the mortgage.

The one with whom the children remain receives a larger share than the other spouse.

If the ex-husband and wife decide to sell the apartment (not without the consent of the bank), the child (children) must be discharged from this apartment to another place.

Otherwise, guardianship will intervene and may raise the issue of deprivation of parental rights if the existence of normal living conditions for the child does not correspond to reality.

Maternity capital is a state benefit to a mother for the birth or adoption of a second and subsequent child.

A mortgage with maternity capital assumes that the former spouses have at least two children whose rights must be respected.

This is mentioned above. Maternity capital is registered in the name of one of the spouses and cannot be divided during a divorce.

But there are points when dividing an apartment with maternity capital:

• the apartment becomes the shared property of both spouses and their children;
• shares for children are allocated after the mortgage loan is repaid;
• in case of divorce proceedings, the apartment will be divided according to the existing shares.

The division of an apartment purchased with a mortgage can take a long time. To make the task easier, you can draw up a marriage contract.

It is signed at any time before the divorce: before marriage, during the entire period of marriage, as well as before or after purchasing an apartment with a mortgage.

In the latter case, the spouses are required to notify the bank that they have drawn up a marriage contract signed by a notary.

A credit institution can challenge the clause on the division of a mortgaged apartment only by filing a claim in court.

Sometimes banks require the signing of a marriage contract when receiving funds to purchase an apartment. This condition is explained by the fact that one of the spouses prevents the bank from issuing a positive decision.

More often this is due to a bad credit history, having several loans, or lack of official income.

The prenuptial agreement must indicate what is important for the bank as a third interested party: the second spouse waives all obligations under the mortgage and claims. The court's decision in the presence of such an agreement will be in favor of the main borrower.

The peculiarity is that the serviceman himself remains the owner of the mortgage loan and the apartment itself after a divorce. It doesn't matter if he has a wife and children.

The division of the apartment takes place without the participation of the latter. Also, a military man cannot re-issue a mortgage, even if it is necessary to divide an apartment purchased with a military mortgage.

There is another side to such a mortgage loan. A military mortgage implies that if the mortgage is not paid, the responsibility lies entirely with the serviceman himself. A wife, even an ex-wife, is exempt from such an obligation.

When spouses decide how to divide an apartment in a mortgage during a divorce and whether it is possible to divide the loan into two independent ones, the following rules must be followed:

This is the answer to the question of how to reissue a mortgage and how to get out of co-borrowers. Banks often refuse such a decision because they do not want to take risks.

In an apartment for which two loans have been issued, you can stay together, registering it as communal, and everyone gets an isolated living space (room), separate utility payments.

To the spouses’ question, “Is it possible to divide a one-room apartment in this way?” only negative. And you won’t be able to get two separate loans from the bank instead of one for a one-room apartment.

Here's more legal advice:

You can exchange an apartment with several rooms for two. Their total cost will be equal to the amount offered for a mortgaged apartment. But the exchange process can take a long time.

When a divorce proceeding is underway, spouses who have not agreed on payment of the debt may allow incomplete repayment or late payments.

If there has been no mortgage payment for several months, the bank can take the apartment and sell it at auction.

Often, when dividing an apartment and a mortgage into two independent loans, the former spouses do not get along together and one of them remains to live in the apartment. Anyone who has left the apartment can ignore loan payments and claim that he no longer lives.

How to protect yourself in this case? The second will have to pay part of it if he wants to prevent the sale of his share in the apartment at an auction at a reduced price.

He may demand to rewrite the mortgage loan to himself, relieving his ex-spouse of debt obligations and the share in the apartment.

Another way is to sell the apartment at auction and pay off the loan debt to the bank. The remaining money will then be divided between the former spouses.

An apartment with an encumbrance will cost less than the rest, because there will be little demand for it.

Not everyone will agree to buy an apartment for which the mortgage has not been paid. Compensation for the inconvenience will be a discount on its purchase.

If it is not possible to divide or sell the apartment, and it is impossible to live together, then you can go to temporary housing.

According to the law, a mortgaged apartment cannot be rented out and the loan cannot be repaid with its help, since there is no consent of a third party (the bank). In practice, such apartments are successfully rented out.

Today, issues regarding the division of a mortgaged apartment are more often resolved in court.

Judicial practice in such cases varies across the country, and court decisions in different regions of the country can differ radically.

Success in protecting your interests in relation to an apartment often depends on the legal knowledge of the former spouses themselves, the literacy and experience of the lawyer.

Video: How is a mortgage divided during a divorce?

In life, especially family life, anything can happen. Seemingly happy marriages are followed by divorces and divisions of acquired property. Typically, the division of property is carried out with the consent of the ex-husband and wife or in court.

The division procedure becomes significantly more complicated if both spouses or one of them has a mortgage - the division of property during a divorce in this case occurs with the participation of the bank, on whose position much depends.

There may be several options for obtaining a mortgage for people in family relationships, each of them will be resolved differently in the event of a divorce.

Ways to formalize a mortgage loan agreement for a family:

• the contract can be executed for one of the legally married persons with the consent of the other;
• husband and wife are co-borrowers on the loan;
• persons are in a civil marriage, one of them has a mortgage loan;
• the mortgage loan agreement was signed before marriage by one spouse;
• A marriage contract has been concluded between husband and wife.

Any actions with housing registered with a mortgage in the event of a divorce of spouses can only be carried out with the consent of the bank, since the real estate is pledged to the bank.

During a divorce, the bank may require early repayment of the debt, since the number of owners changes, a borrower may appear whose income does not meet the bank’s requirements.

In case of refusal to repay the debt ahead of schedule, the bank may put the property up for sale through auction. The bank will return the rest of the proceeds from the sale of real estate to the spouses, minus mortgage debts.

Spouses - co-borrowers

Banks arrange most mortgage loans in such a way that spouses are co-borrowers.

This allows the family to borrow a higher amount, and the bank to insure itself in case of insolvency of one of the borrowers. When dividing property, housing is divided equally or taking into account the interests of minor children.

In the event of a divorce, there are several options for dividing debts and obligations under a mortgage loan:

• After the divorce, the spouses continue to repay the loan jointly; after repaying the debt, each of them receives their share of the apartment.
• The debt continues to be paid off by one of them, and then he collects from the second the paid part of the funds, or takes over the share of the housing for which he paid. This is done by agreement of the parties or in court.
• With the consent of the bank, the mortgage agreement is reissued, and each of the co-borrowers is responsible for repaying their part of the debt.
• With the consent of the spouses and the bank, the mortgage is reissued to one of them, and the second is paid his part of the funds contributed before the divorce. At the same time, the bank evaluates the borrower’s solvency. It may turn out that the income is not enough to sign a contract for only one person.

The bank's commission for re-issuing documents will be 0,5–1,5% loan amount. Insurance contracts will also have to be reissued.

Apartment sharing

During a divorce, spouses can agree to share housing to pay off the mortgage debt.

If the apartment has a mortgage, the division of property during a divorce occurs by mutual consent, and the spouses have received the approval of the bank, they can rent out this property. The mortgage agreement and obligations under it do not change in this case.

The proceeds from renting out housing are used to pay off the debt, and after it is repaid, the housing can be divided equally between the spouses or sold, and the funds received are divided in half.

This option is possible if, after a divorce, each spouse has the opportunity to move to another home.

Sale

If it is problematic to re-issue a mortgage, or neither spouse agrees to repay the loan alone, you can, with the consent of the bank, put the apartment up for sale.

In this case, several options are possible.

1. The couple finds a buyer who is willing to pay the entire amount of the debt to the bank. The bank will release the property from the mortgage, then it will be possible to complete the sale transaction and register the rights to the apartment. The funds received, minus the amount deposited in the bank, are divided equally.
2. If you find it difficult to find a buyer yourself, you can contact a real estate agency. It will deposit the missing amount into the bank, remove the property from collateral and help sell it. The agency will charge a certain commission for its services; this is not a profitable option for spouses.
3. With the consent of the bank, repay the loan ahead of schedule, remove the apartment as collateral and put it up for sale yourself.
4. With the consent of the bank, replace the debtor. In this case, the bank will issue a mortgage agreement for the buyer of the apartment, and the buyer will return to the sellers the amount they paid under the agreement.
5. If loan payments stop, the bank itself can put the property up for sale and, after repaying the loan, will return the remaining amount to the borrowers.

Video: marriage and mortgage

If the loan is issued to one of the spouses

Despite the fact that the mortgage is issued to one of the married spouses, the housing is their common property and is divided in equal shares.

If the apartment can actually be divided into shares (rooms), then the loan, with the consent of the bank, is reissued to each of the spouses separately. If shares cannot be allocated room by room (in a one-room apartment), the spouse for whom the loan is issued is obliged to continue making payments.

Upon completion of payments, he can recover from the other spouse half of the funds deposited into the bank after the divorce or re-register the mortgage agreement only in his name with the consent of the other party and the bank.

Before marriage

Housing purchased by a spouse before marriage is his personal property. If one of the spouses took out a mortgage loan before marriage, then the ownership of the share of the apartment paid for before marriage belongs to him.

After marriage, the bank, upon application, will register the second spouse as a co-borrower or guarantor for the loan.

In case of divorce, the share of the apartment that was paid for jointly during the marriage is divided equally; the remaining mortgage payments can be made using one of the above options.

After marriage

Property received as a gift or inheritance is the property of the recipient and is not subject to division in the event of a divorce.

After the parties enter into marriage, the loan agreement can be reissued to the husband or wife, or both of them can be co-borrowers. They are jointly and severally liable for their obligations, and it does not matter whether they are co-borrowers or not.

During a divorce, the amount of mortgage debt is usually divided into two equal shares, although sometimes the division may be different by court decision, taking into account the position of the bank, as well as in the presence of minor children.

Marriage contract

A marriage contract, signed by spouses before entering into a legal relationship or living together, solves many problems of division of property.

A notarized marriage contract is a document defining the procedure for dividing property, including if it is acquired under loan agreements.

The prenuptial agreement describes how the mortgage property is divided and how the costs of one of the parties are compensated

It may indicate:

• the amount of debt compensation with other property and its value;
• the size of the share of each spouse;
• the amount of the mortgage payment by each spouse;
• the amount of compensation in the event that one of the parties to the contract renounces its rights to a share in the purchased apartment.

Civil marriage

Citizens in an unregistered marriage are not subject to the provisions and norms of the family code. If persons in a civil marriage have drawn up a mortgage agreement, the bank will enter into an agreement with the co-borrowers. Debt repayment can be individual or joint.

Formally, the apartment will belong to the person for whom the mortgage agreement is drawn up..

When a mortgaged apartment is not divided equally in a divorce

There are cases when, during a divorce, the mortgaged apartment is not divided equally.

• These include military mortgages. During a divorce, only the part contributed from the family budget will be divided. NIS funds are considered earmarked and are not subject to division.
• Mortgage housing purchased with personal funds will not be divided. Personal funds include funds received by inheritance, as a gift, or from the sale of personal property. Deeds of gift, wills, privatization documents, etc. serve as evidence that funds belong to one family member.

conclusions

In the event of a family breakdown, the division of property under a mortgage is a complex and multivariate procedure that is impossible without the participation of the bank. Depending on the position and solvency of the parties, the contract can be extended, re-issued, executed ahead of schedule or terminated. Sometimes housing is sold to repay a debt.

The conclusion of a marriage contract, which provides for future problems and ways out of them, will help to avoid problems with the division of property when family relationships break down.

And, despite the excellent relationship before marriage and the best ideas about the future life together, it will be very prudent to enter into a prenuptial agreement before the wedding.

Divorce is an unpleasant thing in itself. And when spouses have minor children and an apartment taken out on a mortgage, the process becomes much more complicated. If you have children, a divorce can only be filed through the court. There, first of all, the interests of the children and the parent with whom they will remain will be taken into account.

The main difficulty of the divorce process in the presence of mortgage obligations and minor children is that it is necessary to take into account the interests of three parties at once (former spouses and the creditor).

Where to start the divorce process

When receiving mortgage loans, one of the spouses acts as the main borrower, and the second as a guarantor. This does not change the essence, since both bear equal responsibility to the creditor.

If the decision to divorce is made, it is necessary to notify the organization that issued the loan for the apartment. The bank will offer the best options for resolving controversial issues regarding the division of the apartment itself, which is under mortgage, and for repaying the loan. But it is worth noting that in this case the bank operates with options that are beneficial to it. If the divorce does not suit the spouses, it makes sense to consider other prospects for resolving the situation.

Optimal options for dividing a mortgaged apartment during a divorce

The monthly loan payment amount is divided equally. Each spouse becomes individually responsible for repaying the mortgage. Spouses have equal rights to the property, but each pays for his or her share. This option is not always convenient and reliable: firstly, if the spouses do not have other housing, they will be forced to continue living under the same roof. Secondly, one of the owners may simply stop paying their share of the loan due to various circumstances:

• the spouse does not live in this apartment, therefore, does not consider it necessary to pay for it;
• the spouse has financial problems that do not allow him to repay his part of the loan;
• the spouse specifically stopped making payments to force the lending institution to put the property up for sale.

In the first two cases, provided that one of the borrowers conscientiously pays his share and the share of the ex-spouse, he can count on some benefits. The fact that in the future the apartment is not divided into equal shares, but taking into account the fact that the second spouse paid more.

Note: the bank does not care who pays and who does not. Every month a fixed amount must be paid for a certain mortgage loan; if it is not received for a long time, the bank has the right to put the apartment up for auction.

It is highly undesirable to bring it to an auction, since the apartment will be sold at a price much lower than its real value. It is possible that this amount will not be enough even to pay off the mortgage and the spouses will remain in debt during a divorce, but for non-existent property.

Another possible scenario is possible. One of the owners closes his loan obligations ahead of schedule. But he has no right to dispose of his share, since the apartment is still pledged to the bank. In this case, the credit institution carefully studies the solvency of both borrowers and, if the results are satisfactory, the payment is divided into separate parts, with further opportunity to freely dispose of the share of the apartment for which the mortgage has been repaid.

One of the borrowers relieves himself of the obligation to repay the loan and renounces ownership in favor of the second borrower. This option is practiced quite often. The bank agrees to reissue the mortgage loan to one of the spouses if the latter is found solvent.

Important: for any renewal of a mortgage agreement, the credit institution has the right to charge a commission in the amount of 0.5 to 1 percent of the amount of the remaining debt. But in general, banks are quite reluctant to agree to this procedure.

Sell ​​the apartment, pay off the debt on the loan, and divide the remaining money equally between the spouses. An excellent option that allows you to solve several problems at once: firstly, the spouses will get rid of the need to continue living together. Secondly, the issue of loan repayment will be closed. But this option is not always possible for several reasons:

• To sell a mortgaged apartment, you must obtain permission from the bank that issued the loans. Credit organizations are not very happy to take such a step, since they lose interest on using the loan. And this is a considerable amount. But if both spouses are solvent people, then the bank will approve the sale of one mortgaged apartment, offering to take two separate living spaces under the same lending conditions.
• Finding a buyer willing to deal with an apartment that has a mortgage is quite difficult.
• The sale of a mortgaged apartment is a joint activity of two borrower spouses. But few people, having decided to divorce, will want to spend so much time together on common chores, visiting all the necessary authorities.

More possible options

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique. If you want to find out how to solve your particular problem, please use the online consultant form on the right or call the free hotline:

8 800 350-13-94 - Federal number

8 499 938-42-45 - Moscow and Moscow region.

8 812 425-64-57 - St. Petersburg and Leningrad region.

For the bank and spouses, the best option is to repay the mortgage payment early (the payment is divided into equal shares or through a court order). You can find funds for this in different ways:

• sell other property acquired in a joint marriage;
• apply for a new loan for one of the ex-spouses.

Note: after notifying the bank about the divorce of the spouses, it may require you to repay the mortgage loan early.

Either banks provide for a similar development of the situation in the contract - they prescribe mandatory early repayment of payments in the event of a divorce or require a marriage contract to be drawn up, in which all the nuances will be spelled out. It is worth noting that a prenuptial agreement helps not only in controversial situations with mortgage housing, but also in other, no less difficult situations. The prescribed obligations will allow you to avoid scandals, waste of time and money, and also save the nerves of both the spouses themselves and their children.

But there are also couples who, even after a divorce without court decisions, continue to pay the loan in equal or agreed upon shares. This happens if the spouses separated and remained on friendly terms or their common child lives in the mortgaged apartment (if there are minor children).

Mortgage in case of divorce and children

If divorcing owners of a mortgaged apartment have minor children, the court has the right to deviate from the standard rules for dividing loan payments. There may be several options for the development of events:

The parent who provides support for the minor child in most cases receives a larger share in the mortgaged apartment.

Important: dividing a one-room apartment with a mortgage is impossible if there are minor children.

Only a parent and a child can stay in a mortgaged apartment; the other will have to vacate the living space after receiving compensation. Divorce with a mortgage and minor children can be much easier if each spouse comes to a common opinion peacefully. This applies not only to determining the place of residence of children, but also to resolving the issue of paying off debt to the bank.

Attention! Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below:

: procedure for dividing shares of an apartment and obligations between former spouses. Married couples often call and come to our office for whom mortgage division issue became a real life test. The fact is that the division of debts in this case involves a third party in the dispute: the bank that provided the mortgage loan.

To clearly illustrate the risks and problems, read the main questions from citizens and the lawyer's answers to them. Contact our mortgage division lawyers for legal advice. Legal consultation is free.

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Frequently asked questions about mortgages during divorce that lawyers are asked

1. Mortgage during divorce: division of apartment

   

   Before getting married, I bought an apartment in St. Petersburg. Only then did I meet my future wife. They got married, had a child, and lived together for 3 years. During our marriage, I sold my one-room apartment and invested the money from the sale in the mortgage of a three-room apartment in Shushary. Now the mortgage is 45 percent paid off, but the marriage has broken down. How can we divide the apartment, given that the wife has not invested a single ruble into the mortgage? Semyon.

   According to the law, when dividing property that spouses have acquired together, they are allocated 1/2 of a share, unless there was a prenuptial agreement that dictates other conditions for the division.

   But the court may, at its discretion, increase the share of one of the spouses to the detriment of the other. This will happen if the court is presented with evidence that most of the money was invested by the spouse (you) from the sale of property acquired before marriage. It also matters which spouse will raise the child and the presence of other factors.

7 (812) 925-39-24

2. Mortgage during divorce: get a mortgage and get a divorce

   My husband and I are planning to file for divorce. To provide for myself while I'm still married, I want to get a mortgage. I, as a woman with a husband, will approve of it 100%. After that, we'll get a divorce. How to do this correctly? Is it true that mortgage in case of divorce and will the apartment remain for me? Inga, St. Petersburg

   After a divorce, the mortgage is divided equally between the former spouses. If your husband does not pay his share, then the interest on the overdue payment is also divided between the two borrowers. But after a divorce, even if your husband does not pay the mortgage, he is not obliged to give up his share in the apartment. He will have the opportunity to take ownership of 1/2 of the apartment and live in it.

   If your spouse refuses his share, you will be required to pay him 1/2 of the money that was paid on the mortgage during the marriage.

3. Mortgage during divorce: husband demands to give up a share in the apartment

   My husband and I are getting divorced. While married, we bought a one-room apartment. My husband wants to completely take over my apartment. But I don't want to give him my share. He threatens that if I don’t give him 1/2 of the share for free, he will stop paying the loan and all mortgage in case of divorce will fall on me. Can he do this, is he right? Katerina.

   Your husband is violating your rights. Don't let him do this. Since the apartment was acquired during marriage, it is joint marital property. In case of divorce, it is divided between you in 1/2 shares.

   In the event of a divorce, you will be required to pay the mortgage for your share of the apartment, and your husband for his share. You cannot be deprived of the right to this share in any way except by a court decision. But you can refuse it and receive compensation: 1/2 of the money that was paid on the mortgage while you were married.

4. Mortgage during divorce: how to divide a house

   My wife and I took out a mortgage on a plot of land and a house. They registered ownership in equal shares. Five years later, we are getting divorced. My wife either wants to sell me her share for twice as much as it is worth, or demands that I give her my share. Moreover, for an insignificant amount, several times lower than what it costs. Is it possible to somehow, through the court or something else, force her to sell me a share of the house for the real price? Is it possible to order an assessment, an examination, and buy its share exactly for the value that the assessment will show? Pavel, St. Petersburg

   No, the court does not have the right to oblige your wife to set a lower price for her property. Exit: you sell your share. You can set any price and offer her to buy your share (she has the right of first refusal to buy your share). If she refuses, you can sell your share of the house to a third party, but for a price no lower than what you offered to your spouse. You have the same right if she offers you to buy out the share. If she sells her share to a third party for less than what was offered to you, the transaction may be considered invalid by you.

5. Mortgage during divorce: 1/2 each

   My husband and I lived in a civil marriage before marriage. Then we bought an apartment with a mortgage of 1/2 share for each person. A year later, the relationship was officially registered. We had a girl and also had a daughter from our first marriage. We are getting divorced because of his drunkenness. We need to share an apartment, but it is still under mortgage. I have unfulfilled maternity capital. Maybe it would be more profitable for me to invest it in a mortgage so that my share in the apartment would be larger? Anna.

   Anna, don’t rush to invest your maternity capital in the mortgage of this apartment. If you do this, you will have to allocate a share to the children. Talk to your spouse, maybe he will agree to give his share to the children.

6. Mortgage during divorce: division of mortgage with a parasite

   I took out a mortgage for my apartment before I got married. Before marriage, I paid off half of the mortgage. The rest of the money was paid after the wedding. There was no marriage contract. But my husband earned little, and I was the only one struggling with the mortgage. He didn’t work for several months, got a job for a short time and quit. Again at home I lay on the sofa and sipped beer. When I got tired of it, I filed for divorce. He filed a counterclaim for the division of property - he wants half of the apartment. What right does he have to my legal property? Irina, St. Petersburg

   Irina, if during your marriage you paid off half of the mortgage, your husband’s demands are partly justified. But he was mistaken in the size of his claims.

   He has the right to 1/2 of the money that you contributed on the mortgage during the period of marriage or cohabitation and running a common household. That is, he, of course, will not receive half of the apartment, but half of the half of the money that was paid “jointly” is quite possible.

   If you prove in court that you repaid the loan from the money you received under a gift agreement, that’s a different matter. This money is not jointly acquired, only yours. In this case, he is not entitled to compensation.

7. Mortgage during divorce: I can’t pay the mortgage after divorce

   We're getting a divorce. I don’t want to pay a mortgage after a divorce; I don’t have that opportunity. If I give up my half, and my wife agrees to take it and pay the mortgage in full after the divorce, will I be relieved of the obligation to pay contributions? And is it true that if I renounce ownership of my share, my wife will pay me compensation for the apartment? Ilya, St. Petersburg.

   Yes, you are entitled to compensation when dividing your mortgage in a divorce.

8. Mortgage during divorce and property rights

   I have a mortgage on my apartment. The mortgage hasn't been paid off yet, but I want to get married. What are my risks if my future marriage breaks up? What difference does it make if I register ownership of an apartment before marriage or if I am married? Sasha.

   If you take ownership of an apartment before marriage, and repay the mortgage during marriage, your wife will have the right to 1/2 of the money you pay for the apartment during marriage. It does not matter whether you registered ownership of the apartment before marriage or during marriage.

9. Mortgage in case of divorce: prenuptial agreement

   My wife and I are getting a divorce and dividing our property. They took out a mortgage for living together. Now we are trying to come to an agreement: to draw up a marriage contract. Is it possible to state in it that I compensate my wife for 1/3 of the cost of the apartment and give me the right to live in the apartment for 1 year after the divorce? Nikolai.

   Yes, in your case you need to sign a property division agreement. It is necessary to write down all the terms and conditions in as much detail and accurately as possible and have your contract certified by a notary.



10. Mortgage during divorce: how to get your money?

    My parents sold our apartment and divided the money between themselves and me. I received 2,000,000 rubles. My husband and I invested this money into a mortgage for an apartment as a down payment. Now we are getting divorced. I want to get my money back, how can I confirm that my parents gave me two million? Polina, St. Petersburg.

    Let your parents write you a gift agreement to transfer money to you to purchase an apartment. Let them indicate the exact address of the apartment. In the case of a convincing gift agreement, the court will not consider this money to be common property. They will not participate in the division of property.

    Even if your husband receives something during the division, it will be a much smaller amount.

    But you can, in court, offer to leave the apartment and loan obligations to your husband. Your conditions are payment to you of compensation in the amount of 1/2 of the money deposited into the credit account during the marriage.

11. Mortgage during divorce: are we going to court?

    Two years ago, my husband and I took out a mortgage, he is the borrower, I am the co-borrower. It will take another 13 years to pay off the mortgage, but we are getting divorced. What should we do? How to separate a mortgage and an apartment? Natalya, St. Petersburg.

    In case of divorce, the mortgage is divided through the court. Moreover, it is necessary to bring the bank to court as a third party. This process directly concerns the bank, since until the loan is repaid, the apartment is owned by the bank. With the consent of the bank, you can directly re-register the contract in court for one of the spouses. In this case, the court will decide on compensation for the second spouse.

12. Mortgage during divorce: what to do?

    While married, we took out a 1/2 mortgage for my husband and me for 15 years. There is a small child. I want to get my share of the apartment, but I can’t pay the mortgage even half the cost. The mortgage has only been paid for a year. I have to pay for another 14 years, but I have nowhere to live and still need to find a job. What to do? Olesya, St. Petersburg.

    The owner of the apartment until the mortgage debt is repaid is the bank. He needs to be brought to trial. In case of divorce, the mortgaged apartment is divided between the spouses in equal parts. Or it is transferred to one spouse, and the second receives compensation. If you cannot pay the mortgage, choose the option in which the ownership and obligation of the mortgage will pass to your ex-husband and you will receive compensation.

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7 (812) 925-39-24 Division of mortgage upon divorce of spouses in St. Petersburg

13. Mortgage during divorce: how to divide an apartment?

    My husband and I purchased an apartment with a mortgage. I paid 60% for it from my money from the sale of an apartment in Moscow. After that, the husband did not work anywhere and received income from rare odd jobs. We're getting divorced in a month. I am ready to continue paying the mortgage, he does not agree to leave me the apartment, he is trying to get half, 1/2 of the share. We will sue. I have a question: can the court award me the apartment in full? Nina, Gatchina.

    And loan obligations occur only with the participation of the bank in court. If the bank agrees to partition the apartment and renew the loan agreement in a court case, you can, through the court, establish the amount of monetary compensation for your spouse and resolve the issue of dividing the mortgage. But, in order to prove to the court that you paid the mortgage from your own funds, and not from family money, you will have to show the court the relevant documents.

    For such a process, we recommend that you hire an experienced property division lawyer. Chapter mortgages during divorce has a number of complex nuances. A good negotiator and specialist with experience in such matters will help you. They will pay for themselves in the end.

14. Mortgage during divorce: bank against court decision

    During the divorce, there was a court for the division of property and the division of the mortgage. The court decision stated that the apartment and loan obligations were awarded to me. Ownership of the apartment was awarded to me and Rosreestr registered it. The bank was a third party in the process. But his representatives did not come to the trial. The bank did not change the loan agreement, although a written demand and a court decision were sent to it. I pay my mortgage without violations. How to force the bank to amend the agreement in accordance with the court decision? Kirill, St. Petersburg.

    If you already have a court decision, all parties to the case, including the bank, are obliged to comply with it. Contact the bailiff service, which is obliged to monitor and facilitate the implementation of the court decision. In order to force all participants in the case to take action, obtain a decision on the case from the court and take it to the bailiffs. Then just monitor the progress of execution.

15. Mortgage in case of divorce without a prenuptial agreement

    We bought an apartment with a mortgage. My salary is much more than my wife's salary. I paid the mortgage in full, for which I have the relevant documents: receipts for payment of mortgage payments. On this basis, I would like to obtain ownership of the apartment or at least 3/4 of the apartment's share. Tamir, St. Petersburg.

    By law, even if you and your spouse do not have equal income, or one of you did not work at all, the entire income of the husband and wife is joint (unless there is a prenuptial agreement that states otherwise). In your case, most likely you will remain a mortgage borrower by court decision. If the apartment is transferred to you by court decision, you will be required to pay your wife compensation: 1/2 of the funds that were transferred under the mortgage for the entire time of the marriage.

16. Mortgage during divorce: division by agreement

    My wife and I are getting a divorce, we have a child together, and we were paying off the mortgage. She agreed to leave the apartment to me. What documents should we sign so that she does not apply for the apartment in the future? Dmitry E., St. Petersburg.

    Firstly, you need to re-issue a mortgage loan from the bank only in your name. If the bank refuses your request, you will have to resolve the issue in court. If you are able to pay your mortgage and can prove your solvency, you can count on a positive court decision.

    Secondly, if the apartment and the loan are transferred to you, set the amount and pay your spouse monetary compensation.

17. Mortgage in case of divorce and fictitious marriage

    After the wedding, we lived in the apartment of my wife and her parents. Then I rented an apartment and took out a mortgage. The co-borrower was my wife, although I asked the bank to designate someone else as a co-borrower. My wife and I did not live together in a rented apartment. There were no common households. My relatives gave me the money for the down payment. A year later they divorced. After the divorce and before it, the wife did not take part in repaying the loan debt. How can I get the entire apartment without giving a share to my ex-wife? Mikhail, Vyborg.

    Case by mortgage in case of divorce decided through the court. It is necessary to file a claim in court for the division of property and division of the mortgage during a divorce. If you can prove that the money was a gift, your share in the apartment will be increased. If you can prove that you did not run a joint household and had a different budget, it is possible that the share in the apartment will be increased. Depending on the court's decision, compensation may be awarded to the ex-wife.

18. Mortgage during divorce: mortgage debt, what to do?

    I'm divorced. Have a baby. The mortgage was taken out while married to my husband. When dividing the property, they signed an agreement that he would pay half mortgages during divorce. I am the main borrower. I regularly pay the mortgage, but he doesn’t - he has a lot of debt. In principle, I am ready to pay my share in full ahead of schedule, but I am afraid that the bank will force me to pay my husband’s share and his late payments and fines. Elena P., Agalatovo.

    We need to act quickly, without delay. File a lawsuit for division of marital property. Otherwise, the bank has the right to present you with demands for payment of the debt.

    To protect your interests, contact and find a good lawyer.

19. Mortgage during divorce: what percentage?

    My wife and I purchased a three-room apartment with a mortgage. In order to make the first payment - 3,000,000 rubles, I sold my apartment. The rest (two million) was taken out as a 1/2 share mortgage. What percentage of the mortgage will I pay in a divorce? Oleg, St. Petersburg.

    Through the court you can achieve a fair division of property. Prove to the court that you invested money received from the sale of your personal apartment into the apartment. The court will not include this money in the division.

20. Mortgage during divorce: how to refuse a mortgage?

    The mortgage was taken out during marriage. We are getting divorced and would like to get out of the mortgage agreement, especially since I am a co-borrower. Can the option of replacing a co-borrower be approved through the court or in another way? Ivan.

    The issue is being resolved in court. But it is likely that the court will not exclude you from being a co-borrower. But you can sign an agreement with your spouse to waive rights to the apartment and pay you compensation. Compensation can be assigned arbitrarily or as 50% of the mortgage funds paid during the marriage.

21. Mortgage during divorce: husband lost his job

    Six years ago we took out a mortgage. I, the wife, am the main borrower, my husband is the co-borrower. After the divorce, we paid the mortgage equally. Now my husband has lost his job and cannot pay. The property was not divided; my daughter and I live in another region. He doesn't pay child support either. What to do? Alina, St. Petersburg

    Divide the property through the court. In court, you can either recover the debt from your spouse or transfer all obligations to yourself, transfer the right to the apartment to yourself, and determine the amount of compensation to your ex-husband. Demand him to file a separate claim.

22. Mortgage during divorce: how to divide if there is a child?

    My husband is demanding compensation for his mortgaged apartment. I'm ready to take on the mortgage after the divorce. My husband is ready to give it up if I pay him compensation. But we have a child who, in the event of a divorce, will live with me. How does it affect the fact that I am raising our common child? Is there an option to pay less compensation than it would be without a child? Catherine

    As a rule, the presence of children does not affect the division of property between spouses. Regardless of who the child stays with, your share in the apartment is 50%. An exception is if you invested maternity capital in paying the mortgage, the child has a share in the apartment. In this case, the division will occur in different shares.