Mortgage section for divorce: legal practice

The divorce process is always accompanied by bureaucratic procedures and various difficulties. One of them is the division of property during a divorce. Mortgages in this situation are also subject to separation. At the same time, the division of a mortgage loan during a divorce is a very complicated procedure.

Mortgage Section Terms

The mortgage section after the divorce is one of the most pressing and pressing issues for Russians. This is explained both by the long terms of repayment of such a loan - often borrowers pay it all their lives, and by an expensive collateral, in the role of which is real estate purchased on credit. The division of mortgages between spouses in a divorce proceeding is carried out in accordance with the following rules:

1. A loan product received by spouses in a marriage is shared between them.
2. The size of the share belonging to each of the spouses is determined depending on the situation. If the division of property in a mortgage is carried out equally, then the loan itself is divided in half. If the property is divided according to other principles, then in most cases the division of the mortgage is carried out in proportion to the shares owned by each of the spouses. The more property belongs to one of them, the more its debt will be.
3. Mortgage may be divided over the three years since the dissolution of the marriage.
4. Initiation of the loan section can be carried out not only by spouses, but also by the credit organization that issued the mortgage loan. For example, if the former spouse, who was engaged in the registration of mortgages in marriage, does not make timely payments within thirty-six months after the divorce, then the bank can send a statement of claim to the court with a request to carry out the division of debts and matrimonial property. A court decision may oblige one of the spouses to pay the debt even after the marriage is dissolved.

What rights does the second spouse have?

The share of the second spouse in the division of real estate purchased on credit and a mortgage loan is determined taking into account the whole situation and its careful analysis. Not only the conditions under which housing was purchased are taken into account, but also the agreement on the division of the mortgage, if any, was concluded between the spouses. Regarding the rights of the second spouse, the law establishes the following points:

• The rights of the second spouse to property acquired on credit are similar to the rights of the first spouse. In this section of the apartment in the mortgage is carried out equally.
• If the bank received a written protest from the second spouse in writing the loan, then the collateral and mortgage on it are recognized as personal property and debt of the borrower in court. In this case, the second spouse does not have the right to property and does not repay the issued loan.
• The court may recognize the loan as personal even if the down payment on it or most of it was paid by one of the spouses at the expense of personal funds. In this case, real estate that was purchased with these funds will be considered the personal property of the spouse.
• A spouse whose rights are violated during a dispute over a division of property acquired on credit can go to court, providing the necessary evidence.

Ways to solve the mortgage issue

Section of an apartment in a mortgage during a divorce can be carried out in different ways.

Early repayment of a loan

Spouses are trying to pay off the balance of the mortgage loan ahead of schedule.The property withdrawn from the pledge is quickly sold, and the proceeds of the money are divided in half, unless any other conditions are agreed upon in advance. A similar section of an apartment in a mortgage makes it possible to reduce the overpayment of a loan and make real estate property as soon as possible. At the same time, an agreement is often concluded between the spouses, according to which one of them can buy part of the property from the other, becoming its sole owner.

Joint repayment of debt on schedule

Mortgage payments are continued by both spouses in order to further obtain a share in the right to real estate. Section mortgages can only be done in court: the resulting court decision allows you to pay off a mortgage loan, sell real estate and split the proceeds or buy a share from one of the spouses.

This method is not the best division of property: an apartment in a mortgage can become an additional reason for the deterioration of relations between spouses, if they were tense between them. In addition, this option does not exclude joint responsibility: if one of the spouses stops paying the loan, then the second will have to pay off the mortgage in full.

Scheduled repayment by one spouse and sole proprietorship

Mortgage debt and property purchased on credit become the property of one of the spouses, while the second receives compensation in the form of any other property. In this case, an agreement on the division of property is drawn up. Mortgages and real estate are executed between spouses according to an agreement:

• The borrower receives the property in sole ownership, and the guarantor ceases to be responsible for repaying the loan and is removed from the number of owners.
• The guarantor receives the property for sole use. This method is accompanied by refinancing a mortgage loan and removing the borrower from debtors and owners.

For most spouses, this option of dividing a mortgage loan is more affordable and simple from a psychological point of view. If it is impossible for the second spouse to pay compensation due to the lack of suitable property, then you can resort to discussing payments with installments for a certain time period.

Mortgage repayment termination

The couple jointly decide that they do not need real estate and stop paying a mortgage. The bank is notified of the decision, after which the apartment is sold. The proceeds are used to repay the debt, and the balance may be divided between the spouses by agreement between them.

The entire process of selling real estate is controlled by the bank. This option has its drawbacks - for the property you can get a significantly lower amount than its real value. This is explained by the fact that the bank is trying to quickly sell the collateral for a price that will allow you to pay off the debt.

How to split a mortgage in a divorce

Mortgage during the marriage is as follows:

1. A written agreement is concluded with the second spouse, in which the division of property and debt is stipulated. This document can be certified by a notary. It consists both during the divorce proceedings, and at any time after the spouses divorce - at the same time, no more than three years should pass.
2. In a controversial situation, they apply to the court with a statement of claim on the division of debts and property. Between spouses, both during a divorce, and within three years from the end of the divorce proceedings, an agreement on the division of property may be concluded. The statement of claim should indicate what exactly each spouse gets in the property.The creditor bank also has the full right to file a lawsuit with the court: its claim will be satisfied through the sale of a share belonging to the debtor spouse.

After the spouses have any of the acts listed above - a contract, a court decision or an agreement - they apply to the Federal Registration Service for registration of property rights and to challenge creditors' claims for debt.

How to split a pre-marriage mortgage

The division of a mortgage issued before marriage is generally carried out in the same way as the division of any other loan taken in marriage:

1. A mortgage loan can be considered both personal property and joint property of spouses.
2. A mortgage issued prior to marriage is considered a personal duty of the spouse in whose name it was registered initially.
3. If during the marriage the mortgage loan was repaid at the expense of the joint funds of the spouses, the court can make a decision, according to which both the loan and the property acquired at its expense will be considered jointly acquired. If the second spouse does not agree with this point of view, then she will have to prove it in court.

Bank situation resolution

The mortgage section requires not only consensus among spouses, but also the right approach and well-organized communication with a banking institution:

• Any changes in life that could affect the repayment of a loan are promptly reported to a financial institution.
• The recommendations made by the loan specialist must be taken into account and taken into account, especially when assessing one's solvency after the completion of the divorce proceedings.
• If one of the spouses does not agree with the execution of the mortgage loan issued to the other spouse, he must send a written application to the bank within one year from the moment of the mortgage registration with the requirement to recognize the loan debt as a personal debt of the borrower. If the bank refuses, the contract is disputed in court and is invalidated in whole or in part in the field of recognizing a mortgage loan as a joint spousal loan. The court in most cases makes a decision in favor of the spouses, since they can dispose of jointly acquired property.
• All negotiations with a financial institution are conducted only in writing. All collected papers can serve as evidence of attempts to pre-trial settlement of the dispute.
• If the spouses decide on the division of property without resorting to litigation, they undertake to notify the banking institution of the decision and agree on the agreed conditions with it. The consent of the banking organization may also be required if the property is alienated to third parties.
• Even if the spouses cannot make a decision regarding the division of property or if they need extra time, you cannot postpone payments on the loan or completely stop them. If there are systematic delays, the bank may apply to the court with a request to collect collateral from the borrower. In such a situation, real estate is usually sold under the hammer for a small amount sufficient to cover the loan balance.

Mortgage section in the presence of children

The section of a mortgage loan does not in any way depend on the presence of children in the spouses. Moreover, this fact affects the decision made when dividing property purchased at the expense of a mortgage loan.

Who is left with a mortgage if a child is available?

By a court decision, a spouse with whom the children remain can be assigned a larger share of property than the second spouse. At the same time, the first spouse gets a large share of loan obligations, which is not always a good option.

In the case of having children in the family, the best option for the mortgage section would be to draw up a peace agreement.At the same time, it is necessary to remember that mortgage housing is collateral, and accordingly, the bank can collect it regardless of whether the debtor has children and whether they are registered in the disputed living space. The agreement concluded between the spouses will have legal force and will be sent to the mortgage loan agreement only if it is agreed with the bank both in terms of real estate management and in terms of mortgage obligations.

Military mortgage

The laws and rules listed above do not apply to property acquired through a military mortgage. This is explained by the fact that the repayment of this type of mortgage is carried out at the expense of funds allocated by the Ministry of Defense of the Russian Federation, and not the personal funds of the military man and his wife.

A military mortgage is executed in compliance with several basic rules:

1. The contract for the purchase of real estate is concluded only by military personnel.
2. The maximum amount of a mortgage loan is limited.
3. The owner of the property is only a serviceman.
4. When dividing real estate, it is impossible to reissue a loan agreement.

A military mortgage is often accompanied by a demand on the part of the bank to conclude a marriage contract, under which a soldier in the event of the initiation of a divorce proceedings becomes the sole owner of the apartment.