About personal debts (and not only) paid from the common funds of the spouses

General information about the division of debts between spouses

Divorce involves the end of a joint union between a man and a woman, followed by the division of jointly acquired property and debts.
At the same time, the legislator in Article 38 of the RF IC specifies that debts can be divided both during and after a divorce.

However, not all debts are subject to division, but only those that are joint. Despite the fact that the legislator does not define what exactly refers to such, law enforcement practice proceeds from the fact that they include debt obligations:

• in which both spouses act as borrowers (i.e., the spouses jointly entered into a loan agreement with a bank or a loan agreement with a lender and are co-borrowers) or about which both knew (i.e., the second spouse consented to the conclusion of the transaction);
• which were executed by one of the spouses, if the funds were then used to purchase common property (for example, an apartment).

By default, the spouse's debt, which he has incurred on himself, is his personal until the contrary is proven. This presumption was established due to the fact that during a divorce, cases of one of the spouses announcing in court a loan that was allegedly spent on acquiring common property have become quite frequent.

However, it is important to document that such a purchase actually took place and prove that the debt was received for joint needs.

Division of debt obligations by court decision

If there is no agreement between the spouses regarding the fate of common debts, the issue of their division will be resolved in court.

The court must first establish for what purpose the borrowed funds were used. Applying the criteria for community of property developed in judicial practice, the court separates personal and general debt obligations.

At this stage, the spouse who does not want to pay the loan taken for family needs alone must prove that the money borrowed was spent not only on him personally.

In some cases, this will be difficult to do, for example, credit card debt is very often considered personal, since it will be almost impossible to prove the use of money for the needs of the other spouse.

In the opposite position is a spouse who does not want to pay off a loan that the other spouse took on exclusively “for himself.” He is faced with the task, first of all, of proving the personal nature of the debt obligation.

For this purpose, it would be suitable, for example, for testimony that one of the spouses took a vacation alone on the loan or solely used the car borrowed on credit, and the other spouse’s vehicle was used to solve general family problems.

In difficult cases, it is better to hire a lawyer to successfully defend your position.

Regardless of which side you are on, the claim must be as specific as possible about how the loan obligation was acquired, what the money was spent on, and provide all possible evidence of your position. This can be witness statements, account statements, checks and any other evidence.

Having determined the common debts, the court divides them in proportion to the remaining divided property.

By default, common property is divided equally between spouses, but this rule has a main exception - minor children remaining with one of the spouses, they can significantly affect the shares of the spouses when dividing property.

What each spouse acquired before marriage is excluded from common property. Also, the decision on division does not apply to personal property - clothing, jewelry, items that are used only by children, unless they are recognized as luxury items.

In this matter, the main criterion is the cost of the item. You cannot divide your wife’s inexpensive jewelry, but you can share a sports car, even if it was bought for your husband and used only by him.

In some cases, the court may recognize as a common debt obligation acquired before marriage - if the money went for family needs. But as a general rule, only common debts are divided.

The division of debt obligations is carried out according to the same rules as the division of other property. Therefore, if the wife receives two-thirds of the apartment, she will have to bear the obligation to pay two-thirds of the debt.

How to divide debts during divorce

Depending on whether the spouses reach a consensus or not, there are two ways to divide debts:

1. Voluntarily - by drawing up an agreement and approving it by a notary.
2. In court - when spouses cannot distribute acquired property and debts voluntarily.

As a general rule, the debts of spouses are divided in half, except in cases where:

• otherwise established by the agreement concluded between them;
• one of them spent property to the detriment of the interests of the family or had no income without good reason;
• there is a need to take into account the interests of minor children.

The procedure for dividing debts is as follows:

1. An inventory of all existing debts is compiled with the remainder for the period of divorce.
2. The spouses decide in what order they will divide the debts: they will agree and draw up an agreement or go to court.
3. If we are talking about an agreement, it is certified by a notary and comes into force from that moment. If we are talking about the court, then the interested party files a claim (there may be counterclaims), after which the court makes a decision that is subject to mandatory execution by both spouses.

Spouses can not only divide debts during a divorce, but also agree on the procedure for repaying them. Here, for example, are options for dividing the debt for a mortgage:

1. One spouse buys out the other spouse's share of the property and continues to pay the mortgage.
2. The couple sells the apartment and divides the amount remaining after paying off the debt in half.
3. The spouses sign an agreement with the bank to divide the joint debt into two individual ones.

How to draw up an agreement

To avoid controversial situations, it is important to know how to correctly draw up an agreement on the division of loan obligations. Ideally, you need to have a sample in front of your eyes. If it is missing, it is important to adhere to the rules below.

Content

When drawing up a document, it is necessary to adhere to the general principles of design and ensure that the information is displayed completely. The agreement must contain the following information:

1. Information about the husband and wife, namely full name, birthday, address, information from the passport.
2. Explanation of loan obligations. It is important to display in the agreement the day the loan was issued, the total amount, information about the creditor and debtor.
3. Agreement on debt repayment. It is necessary to indicate who, when, and in what amounts should pay. Depending on the agreement, the parties repay the debt in equal parts or different shares.
4. The day of the agreement.
5. Confirmation of familiarization with the document (signature).

The contents of the agreement may vary depending on the situation, but information about the parties, payment details, date and signature are required.

List of documents

A number of documents are attached to the agreement. The package includes:

• couple's ID cards;
• marriage or divorce certificates;
• documents from a bank or microfinance organization confirming the availability of a loan;
• statements with information about debt repayment;
• debt for housing and communal services, receipts and other evidence indicating the existence of debt.

How to divide a loan or loan

The specifics of dividing the spouses’ obligations under a loan or loan depend on the terms of the agreement, the position of the credit institution, the presence of mutual consent and the purpose of using the loan.
By default, the general rule of clause 3 of Art. is applicable to debt obligations. 39 RF IC. According to this rule, the remaining debt on the loan must be distributed between the spouses in proportion to the shares awarded to each of them in the right of common property.

The loan can be divided without the participation of the creditor only during legal proceedings. To avoid trial, spouses can resort to one of the following options:

1. Contact the lender with a proposal to highlight the obligations of each spouse under the agreement (in this case, an additional agreement is concluded to the loan agreement).
2. Include in the agreement on the division of jointly acquired property a clause that one of the former spouses pays compensation to the other (who repays the loan) (a certain share of the total payment).

The possibility of demanding compensation for part of the funds allocated by the ex-spouse to repay the loan is confirmed, among other things, by the ruling of the Supreme Court of the Russian Federation dated November 20, 2018 No. 18-KG18-201.

If one spouse was the borrower under the agreement, in order to award compensation in court it is necessary to prove that the funds received were used for the general needs of the family.

This condition was outlined by the Supreme Court of the Russian Federation in Review of Judicial Practice No. 1 for 2021.

When is such an agreement necessary?

According to the laws of the Russian Federation, debts acquired by a married couple during their life together are considered joint. Debt division during divorce occurs in two ways:

1. By agreement (out-of-court procedure).
2. Through the court.

Lawyers recommend resolving financial issues without going to court. This path involves personal communication between spouses and agreement on debt repayment issues. To consolidate the position, each party draws up a debt division agreement.

Drawing up a contract has a number of advantages:

• resolving the issue of debt obligations peacefully;
• saving time;
• reduction of costs that inevitably occur during court proceedings;
• maintaining friendships after divorce;
• no difficulties with the division, because the agreement discusses the terms of payment of debts, the amount of payments and other information.

In the absence of an agreement or violation of agreements, the spouses have only one option - going to court. The latter takes into account the circumstances of the case and makes a decision taking into account the requirements of the law, and not the wishes of the couple. To make a fair decision, the judge must have a complete package of evidence in his hands.

Division of debts by agreement

Family or civil law does not provide for a separate agreement on the division of debt obligations.
But this fact does not prevent the inclusion of provisions on the division of debts in the agreement on the division of property of the spouses. The document is drawn up in writing and is subject to notarization. An agreement regarding the debts of divorcing or ex-spouses can also be concluded as part of a court proceeding. In this case, before making a decision, if there are written agreements between the disputing parties, the court approves the settlement agreement.

All debts are calculated at the time of drawing up the agreement and are confirmed by documents (loan agreements, receipts, loan agreements).

Important! As the Supreme Court of the Russian Federation indicated in the already mentioned ruling No. 18-КГ18-201, it is impossible to change the terms of the original loan agreement without the consent of the lender. This rule follows primarily from paragraph 1 of Art. 450 of the Civil Code, according to which changes to the contract are possible by mutual agreement of the parties.

It follows from this that the parties do not have the right to change the terms of the loans by agreement. In particular, the parties cannot stipulate that they undertake to make monthly payments in equal shares if, according to the agreement, one of them is the payer. But it is possible to register the obligation of one of the parties to compensate a certain share of the periodic payment of the party - the payer of the loan.

Termination of the agreement

By agreement, husband and wife have the right to voluntarily terminate the contract. For this purpose, another document is drawn up indicating the reasons for this decision. Termination must be a joint decision. It will not be possible to do this on the initiative of any one party.

Causes:

• violation of the laws of the Russian Federation when drawing up;
• failure to comply with the terms of the document;
• non-compliance with the rights of any of the spouses and indication of conditions that obviously place a person at a disadvantage.

In most cases, the court meets the applicants halfway and grants the request to terminate the contract.

Let's sum it up

The division of common debts can be an even more painful process than the division of common property, especially if (as is usually the case) the loans are issued to only one of the spouses.

In order to defend your interests during a divorce, you need to approach this issue competently and carefully.

1. Try to reach an agreement first - this is the least expensive and time-consuming way to split your debts.
2. If you can’t reach an agreement, start drawing up a claim for division of property as soon as possible. It is better to involve a lawyer with good practice in family law.
3. In the claim, be as specific as possible about the composition, method, time, and circumstances of the acquisition of the property. The claim must be accompanied by an inventory of the property with an estimate of its value.
4. Also describe in detail the purposes for which the loans taken during marriage were spent.
5. Be prepared for the fact that you will have to defend your position - you need to prepare a list of witnesses who can confirm the validity of your claims, and collect all possible documentary evidence in your favor.
6. If possible, entrust the case to a lawyer, especially if you know that the other side will seek the help of a professional.
7. Keep in mind that if the creditor's representative did not participate in court hearings, he can challenge the court's decision to divide the debt. Therefore, the bank must be notified of the lawsuit (notifications are sent by the court).