Two ways to divide a mortgaged apartment
1. Very often, spouses reach an agreement among themselves and arrange a mortgage for one of them, and he also makes payments on the loan. Accordingly, after full repayment, this person becomes the sole legal owner of the property.
In this case, the second spouse must receive monetary compensation for half of the apartment. Such compensation is calculated based on the market value of the housing. You can roughly navigate the market value by ordering a certificate of cadastral value from the MFC, since today the cadastral value of real estate is in most cases close to the market value. Help is provided free of charge.
Who has the right to a mortgage apartment after divorce?
My ex-husband received a tax deduction for the entire apartment - how can I take half?
2. The mortgage can be reissued to both spouses, in which case both will become the owners of the apartment. Such a loan agreement must clearly define what responsibility each borrower bears for repaying the loan. In this case, one borrower should not be responsible for the second.
This is convenient when you need to formalize a deal with unequal shares in proportion to the participation of each. The downside is that this option is only suitable for those who have normal relationships after a divorce, which is rare in practice.
In this case, both spouses are protected by civil law rules regarding shared ownership. It is also worth noting that obtaining a mortgage loan for both spouses is possible only if each of them works and receives a stable monthly income. Also, of course, the bank's consent is required.
How to divide a loan for an apartment issued during marriage
Spouses who took out a loan together wonder how to get out of a mortgage during a divorce. It all depends on what kind of relationship people remain in after the divorce. After a divorce, the following solutions are possible:
- continue to repay the loan as it happened before (the spouses are in full agreement with everything);
- engage in the division of property and obligations to pay the loan obligation - voluntarily or by court decision;
- return the apartment (if the lender allows it).
Not everything is simple, and several legal points should be taken into account.
- If housing was purchased in the official marriage of a husband and wife (it does not matter - immediately or on credit), it belongs to the category of jointly acquired property.
- If the property is equated to property acquired during the years of official marriage, then the obligations to the bank are divided in half.
- It does not matter to whom the mortgaged apartment is registered and who took out the loan - payments are made by both spouses after the divorce.
There are other problems: not all creditors allow the division of property between spouses. Banks are the lenders, and it is not profitable for them for anyone to withdraw from the process. Then you will have to review the documents and set a new interest rate.
An important nuance is the insolvency of the husband or wife: family members do not always have the same income. When spouses get divorced, one of them is unable to pay the mortgage. We have to negotiate, go to the bank.
The question: how to get out of a mortgage after a divorce does not have an exact answer. Both applicants are considered co-borrowers and therefore must pay the same amount of debt. But there are a number of circumstances in which the loan for an apartment is reviewed.
"Civil marriage"
If the marriage is not registered in the registry office (the so-called civil marriage), then from the legal side it is considered cohabitation: two people are not related to each other in the legal field. As a result, in a “civil marriage” any property, including those acquired with a mortgage, belongs to the person in whose name it is registered. The other “common-law spouse” has no claim to this property and receives nothing in the event of separation.
How to divide an apartment if the mortgage was issued before marriage, but we paid together?
How reliable are prenuptial agreements?
How to get out of a mortgage in a civil marriage
Not all couples register their relationship. They believe that the stamp in the passport will not change anything, everything will remain as it is. The guy or girl already considers himself a “spouse”. Such couples, just like married couples, think about the future. The thought of taking out a mortgage often comes to mind.
But lawyers strongly recommend: before you take out a mortgage loan and deal with the purchased apartment, it is necessary to legalize the relationship. Then the spouses will be confident in each other. You won’t have to run around and demand repayment of part of your debts - the Law will oblige you to pay them.
Free deals
Anything received through gratuitous transactions, that is, for free, is excluded from jointly acquired property. In simple words: what you received as a gift (under a gift agreement), an inheritance (under a will or by law), as well as through privatization - all this property is only yours. The fact that you got it in marriage is not important.
This applies to the mortgaged apartment section as follows. If you inherited money during marriage and used it for the first mortgage payment, or paid off part of the loan with this money, then when dividing the apartment, the court will take this amount into account. The apartment will not be divided in half, but taking into account the investment of personal money. The same applies to property: if you received an apartment or other property (for example, a car) and sold it, and the proceeds were used to pay the mortgage, this will also be taken into account.
The following is important. In order for your personal money contributed to the mortgage to be taken into account during the division in proportion to your contribution to the mortgage payment, you must declare this to the court and provide supporting documents.
Let me emphasize once again that the transaction must be free of charge. That is, the option when they register a fictitious purchase and sale of real estate, but in reality the thing is transferred without payment (in fact, a donation), will not work. Only donation, inheritance or privatization.
How to legally divide an apartment during a divorce?
We took out a mortgage for our mother-in-law, we are getting divorced - how to divide the apartment?
Methods for dividing a mortgaged apartment
Those who decide to divide the mortgage and the apartment purchased with its assistance can choose two main ways of dividing jointly acquired property.
| No. | Methods | Comments |
| 1 | Voluntary | If understanding in the family has not yet been completely lost, even during an official divorce, spouses (or former spouses) can themselves negotiate all the nuances of the division of property, mortgages and other debts. To do this, an agreement on the division of property is drawn up, where all the conditions are specified. The agreement is certified by a notary. |
| 2 | Judicial | When it is impossible to reach agreement on key conditions, any of the spouses (former spouses) has the right to file a claim in court for the division of the mortgaged apartment. Yes, this is fraught with additional legal costs and is by no means quick, but there are no other options. |
Role of the bank
The mortgaged apartment is pledged to the bank. This will be noted on your certificate of title or title. In order to somehow dispose of this apartment (divide, sell, etc.), the bank's consent will be required.
Banks often do not give such consent if the owner wants to become someone who, according to documents (for example, receiving a “gray” salary) will not be able to pay the mortgage. It is advisable to personally meet with the manager of the bank branch where you took out a mortgage and discuss the situation. Here you should be extremely honest and say directly who will actually pay the mortgage, and also clarify what documents will be required from you to confirm your income if you cannot obtain a certificate in Form 2-NDFL.
The bank's participation in the court proceedings regarding the division of the mortgaged apartment is mandatory. Therefore, it is better to enlist the bank’s support before the trial. If the bank does not agree with the proposal to divide the mortgage, the court usually takes the bank's position. As a result, one of the parties receives its share of the property rights, but the mortgage is paid by the one for whom it was issued. Then the mortgage payer has the right to demand half of the mortgage money paid from the ex-spouse.
How to divide an apartment purchased with a mortgage for capital in a divorce?
Is the husband entitled to a share in the apartment during a divorce?
Who can be a co-borrower?
Any adult who meets the requirements of the credit institution can act in this capacity. Considering that the co-borrower is a full participant in the loan agreement, the involvement of minors for these purposes is not allowed.
For example, you can take the loan program of a conditional bank. Standard requirements for potential clients are as follows:
- Age appropriate.
- Availability of permanent income and employment - the data is documented.
- Permanent registration in the region where the agreement is concluded.
- Positive credit history.
- No heavy credit load.
Whatever requirements are imposed on the borrower, the bank sets the same requirements for the co-borrower. In certain situations, a person becomes a co-borrower automatically - in accordance with legal requirements. This is possible if the mortgage is issued by a person who is officially married. The second spouse enters into the agreement as a co-borrower, regardless of whether he meets the requirements of the credit institution or not.
Mortgage during divorce: former spouses are co-borrowers
In mortgage lending, spouses are jointly and severally liable to the bank, that is, both are responsible for repaying the loan without establishing a clear share for each of them. In this case, the loan can be fully repaid by one of the spouses, since the debt remains common, not personalized. Therefore, the ideal option for repaying a mortgage during a divorce is to divide obligations and then repay the established portion of the debt by each spouse separately. However, the bank decides whether or not this option will exist: if such a move contradicts the individual credit policy of the organization, there is nothing that can be done about it. Until the bank agrees to divide the mortgage obligations , it can demand repayment of the debt in full from any of the debtors. The person who has paid the full amount has the right to demand compensation from the second debtor through the court.
There is another option: the mortgage loan is completely reissued to one of the spouses, and the obligations of the second to repay it are terminated. However, it will no longer be possible to claim an apartment fully paid for by the ex-husband or wife. True, the bank can again put a spoke in the wheels - if it doubts the solvency of the sole debtor, it will have to forget about re-registration.
How to get rid of co-borrowers during a divorce?
A spouse can become a co-borrower on a mortgage after a divorce only with the consent of the credit institution. Any change in the composition of debtors is possible after agreement with the bank. The exit procedure may vary depending on the rules established in a particular bank, but, in general, the algorithm consists of the same stages. To cease being a co-borrower, you must send a package of documents to the bank.
The entry of the second spouse into co-borrowers is a requirement of family law, which can be circumvented by drawing up a marriage contract. In all other cases, the spouses are co-borrowers. If the official marriage is terminated, one of the parties, if necessary, can withdraw from the debtors. Next, using the example of Sberbank of Russia, the procedure for withdrawing from being a co-borrower under a mortgage agreement will be described.
Division of mortgage issued before marriage
The division of a mortgaged apartment during a divorce is carried out even if the mortgage was issued by one of the spouses before marriage. If the bank has been notified of a change in the legal status of the debtor, the spouses become joint and several debtors (or one of them becomes a guarantor) and have the right to the apartment in equal shares. If not, the situation becomes more complicated. After marriage, the debtor's income, from which the mortgage is repaid, most often becomes jointly acquired property. Therefore, part of them also belongs to the second spouse. Thus, the second partner de jure makes his contribution to repaying the mortgage, and therefore has the right to claim part of the property.
