Features of the division of a mortgaged apartment - judicial practice

Home/Disposal of an apartment with a mortgage/Divorce with a mortgage and children

Divorce is an unpleasant procedure for a family. But if there are children under 18 years of age, as well as mortgaged housing, the procedure may be difficult. Divorce with a mortgage and children is carried out in the courts with respect for the interests of the child and the divorcing citizens themselves. It is important to determine the obligations of each party and the procedure for repaying the loan.

Is it possible to get divorced with a mortgage and children?

If the spouses decide to divorce, they have the right to do so. But it is important to take into account the presence of jointly acquired property. Its division is carried out on the basis of the Family Code of the Russian Federation.

Attention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call Moscow; Saint Petersburg; Free call for all of Russia.

Attention

In accordance with paragraph 1 of Article 39 of the RF IC, both real estate and debt obligations on them are divided between husband and wife in equal shares.

The difficulty is that the mortgaged apartment is pledged to the bank. In this case, you will need to coordinate the procedure with the credit institution in order to carry out the division with minimal moral costs.

The division is carried out with mandatory notification to the credit institution. This rule is reflected in Federal Law No. 102 of July 16, 1998 “On mortgage (real estate pledge).” If the allocation of shares is carried out through the court, the judge is guided by the wishes of the bank.

Divorce from a mortgage if you have children is possible, but only through the court. Based on the claims of the parties, the place of residence of the minor, the procedure for communication, and the payment of alimony will be determined.
The existence of ownership rights in mortgaged real estate is determined separately if, for example, it was acquired using maternity capital funds.

The main difficulties that arise when dividing an apartment

When dividing an apartment with a mortgage, several problems may arise:

1. One of the spouses refuses to repay the loan. In this case, the second owner will have to close the mortgage alone.
2. The financial institution did not allow the spouses to sell the apartment. In this case, the ex-husband and wife will have to jointly close the mortgage after the divorce.
3. Both spouses refuse to repay the loan. In this case, the financial institution can take away the apartment taken by the borrowers as a mortgage.

Down payment and donation in the matter of dividing the mortgage upon divorce of spouses with children

If the spouses decide to divorce, then they need to familiarize themselves with the following points:

1. The down payment on the mortgage can be divided between the spouses. However, this is possible if the loan was repaid by both the husband and wife.
2. If there is a need to recover the down payment from a spouse, this can only be done by filing a lawsuit in court.
3. If one of the parents wants to issue a deed of gift for a child, this can only be done after the mortgage is closed. This is due to the fact that the minor will not be able to repay the loan.

How is a mortgage issued using maternity capital divided?

If maternity capital was used to pay off the mortgage, then the child has rights to real estate. The spouses themselves determine the share of property that will belong to the minor. For this purpose, an agreement is concluded between the parents.

The portions that husband and wife assign to their children may not be complete. According to current legislation, a minor may be allocated a share that is proportional to the amount of maternity capital allocated to repay the mortgage.

When the mortgage is closed, part of the real estate is transferred to the child. This can be done in one of the following ways:

1. Draw up a gift agreement.
2. Draw up an agreement on determining shares.

The mortgage was issued before marriage to one of the spouses

If the mortgage was issued by one of the spouses before marriage, then the real estate pledged is not jointly acquired property. If a couple wants to divorce, then the apartment cannot be divided.

However, it is important to take into account one point: if after marriage the spouses lived in an apartment with a mortgage and also repaid the loan jointly, then such real estate is considered jointly acquired property.

Ex-spouse's refusal to pay debts

You can refuse to repay the loan using one of the following methods:

1. The spouse draws up the refusal in writing and then has it certified by a notary.
2. The spouse goes to court and files a claim.

If the marriage contract concluded between the parties states that one of the spouses will not claim the apartment in the event of a divorce, then refusal to pay debts is implemented in this way.

Possible options for dividing a mortgaged apartment

During a divorce with children, the division of mortgaged property can be accomplished in several ways.

1. Spouses can formalize an agreement. It states who will repay the existing loan and in what amount. The shares of spouses and children in living space are also reflected. The banking organization must be notified of the agreement being drawn up, after which the marriage may be dissolved. If there are minor children, then divorce with mortgage and children is possible only in court.
2. One of the spouses may refuse to pay the mortgage debt. In this case, the spouse is deprived of the right to real estate. The document must be certified by a notary office. The second spouse will pay the loan amount. The refusal comes into effect only after the bank’s approval. A new contract is drawn up, and the old one is canceled. The updated document will include one borrower.
3. Possible sale of real estate. The procedure is agreed upon with the bank. After the transaction is completed, the amount is deposited towards the debt. The remaining portion is divided equally between the spouses. But if there is no consent from the bank, the collateral cannot be sold during a divorce with a mortgage and children. The notary will not approve such a transaction.
4. The rules for determining the parts of property may be prescribed in the marriage contract. In this case, the procedure for dividing financial obligations and real estate is simplified.
5. If it is not possible to reach a common opinion, a court hearing is scheduled. The court makes a decision on determining the procedure for repaying the loan and establishing shares. Each spouse receives a new loan agreement.

If we don't agree

Everything can be “taken and divided” in court. This will be needed for those who could not agree. The situation, unfortunately, is not uncommon. Clause 3 of Article 38 of the RF IC in such a situation provides for a judicial procedure for dividing the common property of spouses and determining shares in this property. According to paragraph 7 of Art. 38 of the RF IC, a claim for the division of property (mortgages and debts, including) can be filed during the marriage, simultaneously with the divorce and after the divorce for three years. The creditor bank will be a participant in the process.

If the spouses invested their own funds in the purchase of real estate, this must be recorded in the purchase and sale agreement (who participates and in what amount). This will determine how mortgage housing and debts are divided. The debts of the spouses are divided in proportion to the shares transferred to them, or in other proportions, taking into account the invested own funds of each spouse.

If housing is divided in equal shares, then debts are divided equally. Thus, after dividing the mortgaged apartment, everyone acquires a share in both the real estate and the loan repayment. By default, everything is divided in half; changes in the size of the share must be justified and documented in court.

The most reasonable way to avoid the negative consequences of dividing mortgage property is to draw up a prenuptial agreement in advance. But many consider this a sign of distrust of their loved one. Often, the bank offers borrowers to enter into a prenuptial agreement. This is especially true when the down payment is formed from the personal funds of each spouse in different proportions. By personal means, by the way, we can only mean what is donated or inherited, but not income during marriage in the form of salaries, bonuses, investment income, etc.

Divorce with children and a mortgage taken out before marriage

If the relationship has not been registered with the civil registry office, the procedure is simplified. But this is only at first glance. If we turn to the Family Code, Article 36 notes the individual ownership of property by citizens before marriage. Real estate acquired before the registration of a relationship is personal property and is not divided during a divorce.

This only applies to situations where the mortgage was fully repaid before the relationship was registered. If the loan was available at the time of marriage, then the husband and wife mutually, from the joint budget, make repayment. In a divorce with a mortgage and children, the property will be joint, since payment of the mortgage is made by both parties at the time of official relations (articles, RF IC).

For your information

Even if the spouse did not work and did not pay off the mortgage, on the basis of Article 34 of the RF IC, when divorcing a mortgaged apartment and children, the wife can demand her share of the housing. It is important to prove that during this period she was engaged in housekeeping or could not work for objective reasons.

In the absence of a marriage contract, there are two ways out of the situation.

1. Try to resolve the issue peacefully. Since the apartment did not belong to the spouse entirely, but was pledged to the bank, payments were made from the family budget. Real estate is officially recognized as common property. If the spouse confirms this fact, the division agreement can be certified by a notary.
2. When agreement cannot be reached, it is necessary to contact the judicial authorities. It is important for the spouse claiming a share to confirm that the mortgage payments came from the family budget and that the housing was reconstructed and improved. It can be argued that the rooms were renovated, communications, furniture, and equipment were replaced. If the divorce court is satisfied with this evidence, the fact of common property is recognized. The mortgage and property are divided between the spouses proportionally.

Attention:
Determining the place of residence of a child in a divorce with a mortgage and children is made based on many aspects: the level of income and employment of the parents, the availability of living space, etc. These circumstances are considered by the court individually.

Customer Reviews

Gratitude from gr. Kolesnikova A.N. Let me express my deep gratitude to the Legal Agency of St. Petersburg, located at Spassky Lane, 12. For their professional and friendly assistance in resolving my issue! I wish to continue working, bringing benefit to all residents of St. Petersburg. And not only.

Kolesnikov Alexander Nikolaevich.

Position: Head of the Metro Implementation Sector

PS: Before your company, I contacted 5 companies on this issue and received unclear answers.

Gratitude from gr. Bogodyazh N.G. I, Bogodyazh N.G. turned to the Legal Agency of St. Petersburg for help in a dispute with the company RTC JSC regarding the refusal to return the goods in accordance with the rules of trade, thereby my consumer rights were violated.

Thanks to the company’s lawyer, Stepanov D.Yu., I was able to return the money for the low-quality product, and I also received an apology from my opponent. I would like to express my gratitude for the qualified assistance provided to me by D. Yu. Stepanov and the Legal Agency of St. Petersburg.

With gratitude, Bogodyazh.

From Pravikovskaya N.B. I express my gratitude to the staff of the legal consultation: Andrei Valerievich and Dmitry Konstantinovich, who helped me resolve the unpleasant situation with the Pyaterochka store.

The issue was resolved in my favor without delay and quickly. They apologized to me and I received monetary compensation, all without lengthy litigation. Once again, thank you very much!

Gratitude from Guryanova T.A. I express my sincere gratitude to Vasily Anatolyevich for his professionalism and highly qualified assistance in resolving the issue of protecting my rights as a consumer. As a result, I received decent compensation from.

Thanks a lot. 07/09/2019

Gratitude from Soboleva E.P. I would like to express my deep gratitude to Vasily Anatolyevich Kavaliauskas for his literacy, consultation and attention to the client who found herself in a difficult situation; as well as wonderful, sensitive administrators. I wish the company prosperity and good clients.

Sincerely, Soboleva Elena Petrovna. September 19, 2018

Gratitude from Gordeeva E.S. I express my special gratitude to Sergei Vyacheslavovich for his highly competent and detailed consultation on the issue of the employment contract.

Doctor of Philological Sciences, Gordeeva E.S. 12/01/2018

Letter of gratitude to Ermakov A.V.

Gratitude from P.V. Greshina I would like to express my deep gratitude to the employees of your company - Sergei Vyacheslavovich Mavrichev and Konstantin Vasilyevich Solovyov for their enormous support, for their competent explanation and good attitude towards people. I wish you success and prosperity.

Greshina P.V. 03/23/2018

Review by Marcheilo I.V. On September 24, 2021, I turned to Konstantin Vasilievich for legal advice. I would like to express my gratitude for your sensitive, attentive attitude and qualified assistance. I received a comprehensive answer to all my questions. They helped a lot. Thank you! Sincerely, Marcheilo Irina Vladimirovna.

Gratitude from Elena and Alexander I sincerely thank lawyer Vasily Anatolyevich for his qualified and polite service. We will always contact you and tell our friends. Thank you.

Elena

Alexander 998-98-59

Divorce with children and a mortgage taken out during marriage

When taking out a mortgage loan at the time of the official marriage relationship, the property becomes common property. Its division is carried out on the basis of paragraphs 1-3 of Article 38 of the RF IC. When divorcing with children and a mortgage taken out during marriage, there are several possible solutions:

1. The apartment can be sold. The funds received are transferred to the bank to pay off the debt. The remaining money is divided between husband and wife. Banks often refuse this procedure so as not to lose interest on early repayment. Therefore, you need to negotiate with a credit institution with the support of lawyers.
2. The loan agreement may stipulate individual conditions for each party. Then, in the event of a divorce with a mortgage and children, the order of payments does not change. Ex-husband and wife who act as co-borrowers remain bound by the common loan and have joint liability. If such a clause is in the contract, then the institution has the right to independently decide to whom to make claims in case of non-payment. The situation can be resolved by signing an individual agreement reflecting the obligations of each subject.
3. The loan can be reissued for one citizen (clauses 1, 2 of Article 391 of the Civil Code of the Russian Federation). This is provided if the bank agrees to the procedure, and the husband/wife pays a certain amount to the second spouse. The housing remains the property of the person who makes the payments.

The place of residence of children is determined on the basis of a court decision. Only the court can determine which parent the child will remain with. Various circumstances are taken into account, including the presence of conditions created for the minor to live. The child's own opinion may also be taken into account.

Features of civil relations and marriage contract

Let's consider how to divide a mortgaged apartment during a divorce if the purchase was made while the spouses were in a civil marriage.
Typically, in such cases, the bank draws up a loan agreement in such a way that one of the spouses acts as the main borrower, and the second as a guarantor. If the common-law spouses decide to separate, the party who acted as the guarantor must file a claim in court and provide evidence of repayment of the loan and the fact of the marital relationship. To decide in advance how to divide a mortgaged apartment after a divorce, lawyers advise concluding a prenuptial agreement. The document specifies all options for the acquisition and division of property, including a mortgaged apartment.

Let's look at how an apartment is divided under a military mortgage during a divorce. The legislation of the Russian Federation does not provide for the renewal of a military mortgage agreement. The spouse for whom the mortgage agreement was drawn up must repay all loan obligations. The second spouse is not liable to the bank for financial obligations. When a serviceman divorces, the property that was taken under a military mortgage is not subject to division and becomes the full property of the serviceman.

Division of children and mortgages in a civil marriage

If the marriage is civil, the spouses do not have any legal obligations to each other. Therefore, at the time of divorce, the mortgage and property remain with the person who has the obligation to repay the loan.

But the second party can initiate a judicial review of the case to allocate a separate share in the real estate. It is important to prove that there are circumstances for such a decision, the fact of investing in property.

Attention

In a divorce with a mortgage and children, paternity determination is carried out to determine the child's place of residence. This is due to the fact that the common-law spouse is not automatically recognized as the father. And if he is not a biological parent, then he will not have rights to the children.

What you need to think about “on the shore” before taking out a mortgage for two

If the spouses decide to take out a mortgage, then they need to take into account all the consequences that occur in the event of a divorce.

In order to avoid possible problems, at the stage of registering a mortgage, the spouses must enter into an agreement between themselves, the provisions of which will come into force upon the occurrence of a divorce. The document states the following points:

1. Who will get real estate after a divorce?
2. Who will be responsible for paying off the loan after the divorce?

The document must be notarized, otherwise it will not have legal force.

Some financial organizations include additional clauses in the contract concluded with the client. Therefore, in the event of a divorce, it is worth indicating in this document what will happen to the mortgage.

If there is a marriage contract

The procedure for divorce with a mortgage and children is simplified if there is a prenuptial agreement. But it is important that it reflects in detail the principles and rules for dividing a mortgage loan and real estate. The document must be certified by a notary and drawn up in accordance with Article 41 of the RF IC.

A marriage contract can be drawn up:

• before marriage;
• in marital relations;
• before applying for a loan;
• after receiving a loan and purchasing real estate.

In the latter case, the credit institution is notified about the preparation of the document.

Banks themselves often put forward the requirement to draw up a loan agreement before issuing a mortgage. This is provided for:

• the presence of a bad credit history of one of the borrowers;
• obtaining a large mortgage loan in the name of the husband/wife;
• lack of official income for one of the parties.

In accordance with Article 46 of the RF IC, citizens are required to notify the creditor about all changes to the marriage contract.

For your information

The prenuptial agreement may spell out possible solutions in the event of a divorce involving a mortgage and children. The second spouse can refuse claims and division of the apartment. All property, as well as obligations to pay the debt, are transferred to the first.

How is a mortgaged apartment divided during a divorce?

There are two ways to divide property during a divorce: by agreement of the parties or through the court. And it doesn’t matter - during marriage, during divorce or after.

In both cases, it is advisable to first discuss with the bank the option of dividing the apartment and responsibility for the loan, if it was not determined when applying for the loan, for example, in the terms of the marriage contract.

Options could be:

• one spouse remains the owner of the apartment and the title borrower, and the other is removed from the transaction (provided that the income of one borrower allows him to pay the debt alone);
• pay off the mortgage through joint efforts, and then sell the apartment without encumbrance and divide the money;
• sell the mortgaged apartment, close the debt, divide the remaining money between the owners.

Misha and Marina chose the simplest and “boring” option of divorce and division of property and debts: they agreed on everything peacefully and entered into an agreement with a notary. To resolve the mortgage issue on a shared apartment, they decided to sell it, pay off the debt, and divide the rest of the amount. Now all they have to do is officially divorce and submit papers to the bank for approval of their version of division.

If the parties agree on how to divide the property on their own , you can get a divorce at the registry office, and have the agreement on division certified by a notary.

The agreement can stipulate who will make payments under the loan agreement or the insurance agreement for borrowers and the housing itself, who will receive the housing after the encumbrance is lifted, whether compensation is due to the co-borrower who withdraws from the transaction, and its amount.

If there are minor children in the family or the parties could not agree on the division of the apartment and the loan, they must go to court.

In court, property between the parties will be divided in equal shares, unless another option is provided. If one of the parties is awarded property that exceeds its allotted share in value, then the “deprived” party will be entitled to compensation.

If you are not satisfied with this solution, you can demand a share in kind. This means that the owners will receive part of the common property as individual property not only on paper, but also physically. In practice, this is possible with a private house: divide the premises between the owners, make different entrances and separate bathrooms.

If we are talking about an apartment building, then this is not only impractical, but most often it is physically impossible (for example, in a one-room apartment). Therefore, most likely, the “deprived” party will have to be content with compensation for the lost property.

Not only things, apartments, cars, but also debts can be common if they arose in the common interests of the family (as in the case of a mortgage - to improve living conditions). In a division, each person receives a portion of the debt proportional to their share of the property.

For example, the balance of the mortgage debt is 900 thousand rubles. The apartment is divided in half. This means that the co-borrowers must pay the bank 450 thousand rubles each. However, if one of the owners stops paying, the obligation to pay the debt in full will pass to the other owner.

What needs to be done to divide the mortgaged apartment:

1. We conclude a separation agreement with a notary or in court and officially register the divorce. You can do this in any order.
2. We contact our bank with all the documents that we received as a result of actions under paragraph 1. This is a divorce certificate, an agreement on the division of property or a court decision, as well as documents at the request of the bank. For example, if there is a decision to leave an apartment to one of the co-borrowers, documents will be needed to assess his solvency. In any case, it is better to check with the lender for a complete list of documents.

Step-by-step algorithm for dividing a mortgage during divorce

The division of a mortgaged apartment and divorce are carried out in several steps.

1. The spouses enter into a settlement agreement. It defines the pieces of property for each of them. The procedure for repaying loan debt is noted.
2. The divorce is officially registered. If you have children, this can only be done in court. The court determines which parent the minors will live with.
3. With the court decision and settlement agreement, you need to visit the credit institution. There must be documents available, the list of which is established by the bank. It usually includes a copy of the loan agreement, documents on divorce, and certificates of income of the spouses for the last six months.
4. If the conditions offered by the co-borrowers are approved by the bank, then new mortgage documents are drawn up. A loan agreement is drawn up for each of them. If obligations are transferred only to the husband/wife, one contract is drawn up.
5. The bank may refuse to accept the terms of the co-borrowers. In this case, a lawsuit is filed to establish a new procedure for paying off the mortgage.

Registration of a mortgage

How the mortgage apartment will be divided during a divorce depends on who and how the loan agreement was drawn up.

There are several common ways to apply for a loan:

• The husband and wife took out a loan for housing together, the real estate is their jointly acquired property, so they will be jointly responsible for the loan obligations.
• One of the spouses took the mortgage, but the other acted as a guarantor and agreed to sign the agreement. The second spouse will only be liable for the obligations if the entire loan is not repaid at the time of the divorce.
• If a financial loan was taken out before marriage, only the spouse for whom the loan was issued will have to repay it.
• The mortgage is issued only to the husband or wife, and a prenuptial agreement has been concluded between the spouses. After the divorce, the terms of the division will be as specified in this contract.
• The loan was issued to both spouses in a civil marriage. After separation, they will both have to answer for their debts.

Do I need to notify the bank about a divorce?

Notification of the bank about the upcoming divorce with a mortgage and children is mandatory (Federal Law No. 102 of July 16, 1998 “On mortgages (real estate pledge)”). Depending on the circumstances, several interaction options are provided:

• payment of the mortgage on the same terms with notification to the bank;
• division of property and debt obligations, which may be disadvantageous to the bank (if there is a court decision, the bank’s consent is not required);
• refusal of the share of one of the co-borrowers in accordance with Part 1 of Art. 39 of the Civil Procedure Code of the Russian Federation (the bank’s consent is required, a new loan agreement is drawn up);
• one-time payment of the debt by both spouses with further division of property;
• termination of the loan agreement with the consent of the bank.

Allocation of share after loan repayment

Within six months after the mortgage is repaid, the legal representatives of minors are required to allocate a share in housing for the children (if necessary). If this condition is not met, the authorized bodies may go to court against the parents, and the maternity capital will need to be returned.

Registration of a share is carried out through the execution of a deed of gift or the signing of an agreement to transfer part of the property to the child. Both methods represent a procedure for the gratuitous transfer of a share in residential real estate.

Both documents contain the following information:

1. Information about the participants in the transaction: I.O.F., date of birth, passport details;
2. Generic characteristics of the property, its registration number;
3. The size of the allocated share;
4. If a share is allocated to a minor under 14 years of age, his legal representatives are indicated.

The Law does not stipulate how many square meters should be allocated to a minor; the amount is determined by local authorities. If more children were born in the family during the mortgage payment, then the shares in the apartment are distributed to all children born in a joint marriage between the borrower/co-borrower under the agreement.

What will you need?

The allocation of a share is made by a notary; you will need to pay a state fee depending on the size of the allocated area.

Required documents

The following documents must be submitted to Rosreestr:

1. Passports of all parties to the transaction;
2. Certificates of marriage, birth of children;
3. Documents for the purchased housing: Extract from the Unified State Register of Real Estate, purchase and sale agreement;
4. Agreement for the allocation of a share or a gift agreement;
5. Receipt for payment of state duty.

It is necessary to write an application for registration of property rights on behalf of all parties to the transaction.

All documents are submitted in original with copies attached.

Agreement on granting minors rights to housing

The agreement is drawn up in the Pension Fund of the Russian Federation before the transfer of maternity capital funds to pay for housing. It contains the obligation of parents to allocate a share to minor children.

The obligation to allocate a share to children lies with the parents with whom there is a proven family connection, i.e. when the child is common in the marriage.

When signing an agreement, the parents of a minor act as his legal representatives if the child is under 14 years old.

The agreement contains the following information:

• FULL NAME. parents, children with passport data, dates of birth;
• Characteristics of the acquired property with generic characteristics;
• Type of ownership, size of shares;
• Documents underlying the transaction;
• Information about MK;
• Condition with redistribution of shares in case of birth of children in the future.

Protecting children's rights in a mortgage divorce situation

Any real estate transactions that involve minor children are carried out under the control of the guardianship and trusteeship authorities. They check that the child is not left homeless, and that his living conditions do not worsen.

IMPORTANT

Before selling a mortgaged apartment and getting a divorce, you need to discharge the children. But for this purpose a new place of their residence is determined.

If the apartment is divided, then the parent who took the child with him receives the right to a larger share of the property. But the debt obligations on the loan are established in proportion to this part.

If a minor’s rights to housing are violated during a divorce, the parents may be held accountable. This is provided if maternity capital was attracted at the time of registration of the mortgage. The child will have his share in the property, which cannot be deprived of him.

The court determines the living conditions of the child, as well as the share of each parent. The interests of minors must be taken into account.

For your information

The court may determine equal mortgage payments to the spouses or contributions in proportion to their shares. Some circumstances are taken into account - the woman is on maternity leave, the presence of disability, temporary incapacity for work. They worsen the financial situation of the spouse, which affects the repayment of the loan. If the creditor agrees, the share of payment of the woman with the child can be reduced.

If maternity capital has not been used previously, after a divorce the mother can use it and pay off her part of the debt. But until the husband pays the remaining funds on the mortgage, the apartment will remain pledged.

The court considers each case of divorce with mortgage and children on an individual basis. To protect the interests of children, the rules of equal division may be violated in the following situations.

1. If a child has limited capabilities, the parent remaining with him/her claims a larger share in the apartment.
2. If an equal division is contrary to the interests of the children, the court may transfer the property to the parent raising the minors. At the same time, he must pay the cost of the share to the second spouse.
3. When a marriage of a large family is dissolved and the place of residence of the children is determined with one parent, the share of the second spouse is reduced in accordance with the number of children.
4. A reduction in the share is possible if one of the spouses remains with the children, and the second has personal housing.

What happens to the mortgage if you have minor children?

The presence of a minor child in the family has a serious impact on the process of dividing real estate during a divorce. In the vast majority of cases, the parent with whom the child remains is assigned a large share of the apartment by court decision. However, this means that the responsibility for paying the remaining debt to the bank in this case also rests primarily with this spouse.

It is permissible to draw up a settlement agreement between the parents, which clearly states the shares of each spouse, both in property and in obligations to the financial organization. The only option when division is impossible is to have a one-room apartment, in which it is physically impossible to allocate a separate room for each of the parents.

At the same time, we should not forget that the presence of a child is not an obstacle to the bank’s collection of the property pledged under the mortgage in the event that the co-borrowers fail to fulfill their loan obligations.

Divorce through court if you have common children

Divorce in the presence of children is carried out only through the court. It is carried out in several stages:

1. Citizens file a claim in court. They attach all documents to it: passports, birth certificates, marriage certificates, mortgage agreement, real estate papers, marriage contract (if any), confirming various circumstances of the certificate.
2. It is important to determine in advance how alimony will be assigned (a notarial agreement is drawn up) and the division of property will be carried out.
3. A court hearing is scheduled. If the spouses do not agree with each other’s opinion, the court sets a 3-month period for reconciliation. After this period has expired, the marriage is considered dissolved.
4. If the spouses agree to divorce, the submitted agreements on alimony and division of property are checked. Makes sure that the rights of minors are not violated.
5. If there are no problems, a court decision is made. The child’s place of residence is usually determined together with the mother. But if the father does not agree, and the minor himself (after 10 years) has his own opinion, the court takes into account these circumstances.
6. With the received court decision, you need to contact the registry office to make an entry in the register and obtain a divorce certificate. The document from the court is also presented to the credit institution to establish the procedure for paying off the mortgage.

Judicial division

If during the divorce process the spouses cannot peacefully resolve the problems of dividing assets and debts, you can file a lawsuit in court for the division of the mortgaged apartment after the divorce.

In the statement of claim, the applicant must indicate the subject and circumstances of the controversial issue:

• When was the apartment purchased?
• Which of the spouses has the mortgage agreement drawn up for them and who acts as the guarantor?
• What funds were used to repay the mortgage debt?
• How does the plaintiff wish to divide the property?

Statement of claim for divorce with minor children and mortgage

The claim for divorce is drawn up in writing. It is important to include information in the three main parts of the application.

1. The header reflects the name of the judicial authority, personal and contact information of the plaintiff and defendant.
2. The descriptive part describes the circumstances of the case in detail. It reflects where and when the relationship was registered, how many children there are, the moment when the marriage broke up, and the reasons for the dissolution. It must be noted whether there are any property claims or issues of determining the place of residence of children. All circumstances are given with reference to legislative norms.
3. The operative part formulates the requirements. The attached documents are written down. At the end there is a date and signature of the plaintiff.

An example of a statement of claim for divorce with minor children and a mortgage is available.

What to do if your ex-spouse refuses to pay your mortgage after divorce?

Attention:
If one of the spouses, after a divorce with a mortgage loan and children, does not pay the mortgage, the amount of debt increases. If there are no payments for 3-4 months, the lender can take away the home.

There are also frequent situations when a citizen does not live in the housing and does not pay the loan, citing the fact that he has nothing to do with the property. If he refuses his share, you can re-issue the mortgage to the second spouse.

If one of the spouses does not make payments, the first one must pay both parts. Otherwise, the bank will charge penalties and then put the apartment up for auction.

Standard situation

The most typical and simple situation is when co-borrowers took out a mortgage while married.
They have the same payment obligations, that is, not only common real estate, but also common debts. In such a situation, after a divorce, there is a risk that the ex-spouse will stop paying, but will not want to give up his share in the mortgaged apartment. The most common way to solve mortgage problems in such a situation is the voluntary sale of such an apartment. To do this, spouses (or former spouses) first need to find a buyer for housing, and then, together with the buyer, submit an application to the bank to obtain consent for the voluntary sale of property. Having received the bank's consent, you can enter into a transaction. The proceeds from the sale are used to pay off the mortgage, and the lien on the property is removed. If there are any funds left after paying off the mortgage, they are divided equally between the spouses.

Despite the fact that this option can be considered optimal, it has its negative sides.

Firstly, if the owners owned the mortgaged apartment for less than the minimum period for calculating income tax (less than 3 years for a single residence), then after the sale they will need to pay tax. This will not happen if you sell the home for the same amount for which you purchased it. But this can be unprofitable if, for example, good repairs have been made that have increased the cost of housing.

Secondly, additional costs will be required for the services of a realtor to find a buyer and complete the transaction.

Thirdly, buyers of a mortgaged apartment often ask for a discount “for the inconvenience”.

Legal advice

The process of divorce in the presence of a mortgage and children is not easy. To make it easier, lawyers give some tips.

1. It is important to document every real estate investment. The main goal is to convince the court and the bank of reliability. Then the credit institution, if necessary, can grant a deferred payment, and the court will take into account property interests.
2. It is worth dividing the loan repayment obligations. If there is a general repayment, then in the absence of payment of one spouse, the second suffers.
3. It's better to draw up a prenuptial agreement. You can conclude it even after obtaining a mortgage . It will ensure the fulfillment of credit obligations by both parties in the event of a divorce with a mortgage and children.

Possible solutions to the problem

A mortgage in the event of a divorce between spouses and children is a problem faced by many married couples who have decided to divorce and share a common apartment that they took out on credit.

Experts consider early repayment of loan obligations to be the optimal solution for both parties. But this requires money.

You can find them in the following ways:

• Apply for a new loan from the bank.
• Sell ​​other common property that was acquired during the marriage.

Arbitrage practice

Judicial practice includes various cases of division of property. They differ in special circumstances. The court must pay attention to:

• presence of children;
• determining their place of residence;
• income level;
• bank's opinion.

For example, the Lazarevsky District Court of Sochi ruled to exclude the former spouse from the number of borrowers. This is due to the fact that the ex-husband renounced his share in favor of his wife and child by drawing up a written notarial receipt.

The plaintiff also attached payment documents reflecting the sole repayment of the mortgage over four years. The court decided to exclude the spouse from the list of loan debtors and homeowners. He transferred ownership of the property only to the plaintiff.

And the Pervomaisky Court of Omsk in the same situation refused to satisfy the claim. He noted that the plaintiff’s income is not enough to repay the loan. Therefore, joint repayment of the loan and common ownership of property with the ex-husband were determined.

Mortgage property acquired during marriage

The situation is different with the division after a divorce of an apartment with a mortgage purchased during marriage. With such lending, usually the husband and wife have the same rights to housing and bear joint responsibility for loan obligations. If the spouses have decided to separate, it is advisable to resolve the issue of division peacefully. A voluntary agreement is becoming increasingly popular, which will help spouses avoid lawsuits and proceedings, and financial delays in loan repayments.

There are several ways to share a mortgaged apartment peacefully:

• The husband and wife can decide to repay the mortgage in equal shares in the future.
• One party may renounce its share of the apartment in favor of the other party, receiving monetary compensation of half of the price already paid.
• With the permission of the bank, the spouses can sell the apartment, repay the existing loan, and divide the remaining amount equally.
• The parties find funds, fully repay the debt to the bank, and then proceed to sell their own real estate.