Housing taken on a mortgage becomes the common property of the husband and wife, even if the loan was paid by one of them, and the second was at that time engaged in housekeeping and raising children. However, the division of a mortgage in a divorce is very different from the division of a home purchased with one’s own funds.
This procedure depends on many factors:
- whether the apartment was purchased before the marriage was concluded or after the relationship was registered;
- whether the couple has children;
- can the former spouses come to an agreement peacefully or do they need the help of the court to divide property, etc.
A separate category is represented by military personnel who purchase an apartment with a military mortgage. The division of such housing is still a “sore issue” in many regions of the country.
Let us consider in more detail the different circumstances of the division of residential premises taken on a mortgage during a divorce.
If the spouses can agree
Former husband and wife who have come to an agreement on the division of common property can contact a notary.
In this case, you must take with you your passports, divorce certificate, birth certificates of children, as well as all papers proving ownership or the existence of a loan agreement indicating the balance of the debt. The agreement stipulates who will repay the loan and in what parts, who will interact with bank employees and how exactly the shares of real estate will be divided.
All changes regarding loan repayment must be agreed upon with the bank that issued the loan. Only after receiving the bank's approval can you sign the agreement.
How is a mortgage divided in a divorce if there are minor children?
When divorcing a husband and wife with minor children, the following nuances are possible:
- The housing was purchased using maternal capital or funds received from the sale of real estate in which the child had a share or was a full owner. In these cases, the child is given a share in the apartment.
- The child remains in borrowed housing with the mortgage payer. The amount of compensation paid to the second spouse for payments made during the marriage is reduced.
If court assistance is required
If the ex-husband and wife cannot reach a solution that satisfies everyone, they can appeal to the district court. You can submit an application either together with a request for divorce or after a divorce. The main thing is to do this within 3 years after the breakup of the family union.
If the apartment is still under mortgage, another interested party must appear in the case - the bank.
When submitting an application, you must provide the following information:
- name of the court where the claim is filed;
- personal data of the plaintiff and defendant, their addresses and contacts;
- passport and contact details of the representative, as well as details of a notarized power of attorney (if the former spouses apply to the court through a third party);
- a request for dissolution of the marital union (if the claim for division of property is filed together with a request to dissolve the marriage);
- application for the division of jointly acquired property (it is necessary to indicate which parts of the property each spouse claims);
- the grounds for the plaintiff's claim;
- the value of the divided property;
- description of the attached documents.
The claim is supplemented by the following documents:
- photocopies of applications;
- marriage or divorce certificate;
- contract of purchase and sale of housing;
- a certificate of ownership or an extract from the Unified State Register of Real Estate;
- mortgage agreement;
- payment schedule for loan repayment;
- a certificate of the amount already paid and the remaining debt;
- a receipt for payment of state duty;
- a power of attorney certified by a notary, as well as a representative’s passport (if necessary).
The court considers who and how much of their personal funds invested in the purchase of the apartment, whether the spouses have children, and whether maternity capital was used when taking out a mortgage. After a detailed trial, the court issues a verdict.
In this case, you will have to pay a state fee. Its amount depends on the value of the divided property:
- 400 rubles - if the value of the property is no more than 20 thousand rubles;
- 800 rubles + 3% of the total value of the divided property - if the value of the common property is from 20 thousand to 100 thousand rubles;
- 3,200 rubles + 2% of the value of the property - if the price ranges from 100 thousand to 200 thousand rubles;
- 5,200 rubles + 1% - if the value of the property is from 200 thousand to 1 million rubles;
- 13,200 rubles + 0.5% - if the value of the property exceeds 1 million rubles.
The size of the state duty cannot exceed 60 thousand rubles!
After completion of the trial, a copy of the court decision must be provided to Rosreestr. In this case, the paper must be certified by the court, and there must be a mark on it indicating that the decision has entered into legal force.
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. |
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Agreement on the division of a mortgaged apartment
Drawing up a voluntary agreement on the division of property is the right, not the obligation of the parties. A peaceful resolution of the conflict allows you to independently (taking into account the opinion of the bank) establish the procedure for dividing the acquired property and the debt obligation.
The agreement receives legal force only after notarial approval. For an additional fee, a notary can assist in drafting a document.
Participants must go through the following procedure:
- mutual contact with the bank where the loan agreement was drawn up;
- agreement with the borrower on the possibility of changing the procedure and terms of repayment of the debt (applies only to those cases when the parties wish to divide the mortgaged housing and divide the debt; if the spouses decide to pay the loan together, then the bank’s permission is not required);
- contacting a notary to draw up a settlement agreement;
- document certification and registration;
- transferring a copy of the agreement to the bank.
You can first draw up an agreement and then contact the bank with a request to amend the loan agreement, but the borrower may refuse to accept the selected conditions. Without a resolution from the banking institution, the agreement will not gain legal force.
Judicial option
Procedure when going to court:
- Collection of documents.
- Preparation of a statement of claim.
- Payment of state duty.
- Referral to court.
- Trial.
- Obtaining a court decision.
- State registration of property.
The judicial option of dividing a mortgaged apartment between spouses is the most complex and inevitably requires qualified legal assistance.
You can ask the lawyers of our website free questions and clarify for yourself the problematic issues with the mortgage section.
Where to submit?
A claim for division of a mortgage is filed at the place of residence of the defendant or at the location of the most expensive part of the real estate, if the place of registration of the defendant and the location of the property do not coincide.
All claims for the division of a mortgaged apartment clearly fall within the competence of district courts, since magistrates hear cases involving claims of less than 50 thousand rubles. Apartments, of course, don’t cost that much.
In addition, the state fee must be calculated and paid. It will directly depend on the value of the share of the spouses’ property that the plaintiff is claiming.
For more information on the specifics of calculating and paying state duty when dividing property, see here.
Claim for division of mortgage
The statement of claim for the division of the mortgaged apartment and the loan associated with the days is drawn up according to the rules of the provisions of Art. 131-132 Code of Civil Procedure of the Russian Federation. Moreover, one of the articles regulates the content of the claim, the second – the package of annexes to it.
These requirements are common to all claims, so only experienced lawyers are aware of the nuances of the content of a claim for the division of a mortgaged apartment.
List of mandatory information that must be included in the claim:
- The name of the judicial authority and its exact address. In most cases, claims are filed in district and city courts at the place of residence of the defendant or the location of real estate.
- Accurate and complete names of the parties, their registration addresses and places of actual residence.
- Circumstances of dissolution of marital relations or the emergence of a conflict over the division of property. When and by what authority the marriage was dissolved, are there any children?
- Description of the property, including the mortgaged apartment and the terms of the loan agreement.
- Justification of the proposed version of the section. Evidence for accounting the disputed property as joint property.
- Links to practice, legislation, additional arguments.
- Information relating to other property.
- Request to the court to divide the mortgaged apartment, loan, other liabilities and assets.
- Date of filing the claim, personal signature of the plaintiff, list of attachments.
For more information about the rules and nuances of filing a claim, see the material on the statement of claim for the division of a mortgage after a divorce.
Documentation
The petition must contain the following blocks of information:
- the name of the federal court to which the claim is being brought;
- personal data of the plaintiff;
- personal information of the defendant;
- details of the legal entity - the creditor (official name, address - can be found in the loan agreement);
- Title of the document;
- description of the circumstances of the termination of the marriage (divorce certificate details);
- specifying the conditions for purchasing property with a mortgage;
- a request to divide property and debt between the participants;
- a list of additional documents;
- signature and date of registration.
The petition is drawn up in 4 copies: for the court, the plaintiff, the defendant, the borrower’s representative.
| Who directs | Scroll |
| Plaintiff |
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| Defendant |
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| Bank |
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This list is not complete. Additionally, other documents related to the specifics of the property dispute may be required.
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.
State duty
The amount of the state duty is calculated based on the cost of the claim, which, in turn, is calculated depending on what share in the mortgaged apartment the plaintiff claims.
For example, if the full cost of the mortgage is equal to 3 million rubles, and the plaintiff wants to get half of the mortgaged apartment in court, then the amount of the claim will be one and a half million and the state duty must be paid based on this figure.
| Cost of claim, thousand rubles | Amount of state duty, rubles |
| 20 — 100 | 800 plus 3% of the amount over 20,000 rubles |
| 100 — 200 | 3,200 plus 2% of the amount over 100,000 rubles |
| 200 — 1 000 | 5,200 plus 1% of the amount over 200,000 rubles |
| Over 1,000 | 13,200 plus 0.5% of the amount over 1 million rubles |
When making a verdict, the court will necessarily take into account the requirements of not only the former spouses, but also the credit institution, as a third party to the process. Since the bank, until the mortgage is fully repaid, is not only the lender, but also the mortgagee of the real estate, its consent is required for the possible division of debt obligations.
Judicial practice and court decision
60% of cases end with the court dividing the loan and the apartment in half. Another 25% is a refusal to distribute debt obligations, which is due to the opinion of the bank. The remaining 15% is the division of property in different shares.
An example of the division of an apartment in a mortgage from practice:
After registering their marriage, the Ivanov couple took out a mortgage to buy an apartment in the city of Sochi. The amount of debt obligations at the time of registration was 2,500,000 rubles - the main body of the loan and 250,000 - interest under the loan agreement. During their cohabitation, the Ivanovs repaid 1,800,000 for real estate and 180,000 for interest on the loan. After this, a lawsuit was sent to the court to divide the remaining debt and apartment in connection with the divorce.
In her petition, citizen Ivanova indicated that she was asking to divide the apartment and the debt in half. The bank did not object to this decision, since each party presented evidence of its solvency in court. Guided by mutual consent and the consent of the creditor, the judge made the following decision:
- husband and wife must pay 350,000 each towards the main body of the loan;
- each partner is required to contribute 35,000 rubles to cover the interest on the loan;
- after full repayment of the debt, the apartment must be registered in the name of citizen Ivanova and citizen Ivanov in equal shares - 50% each.
If the loan was taken out before the marriage was registered
A man or woman can take out a loan to purchase an apartment both during the marriage and before registering the relationship.
During a divorce, the question arises of how to divide such an apartment. If the loan was paid in full before the wedding, the homeowner may not share his property after the divorce. According to Article 36, property that a person acquired before marriage is his personal property. Some difficulties arise if one of the spouses took out a mortgage on the apartment before marriage, and paid interest on the loan while already a married person (or a married lady, if we are talking about a wife). In this case, the court considers who contributed how much personal funds, what was the loan repayment period, etc. For example, the owner may be required to pay the second spouse monetary compensation for half of the mortgage payments that were paid during the marriage.
Another “difficult” option: when housing was purchased with a mortgage in a new building, the mortgage was paid before the marriage, but the person became the owner after the wedding. Here you only need to rely on the decency of the second spouse, who will not lay claim to someone else’s apartment. If the case comes to trial, the court divides the housing. In this case, it is better to conclude a marriage contract in advance, which will stipulate that the second spouse will not apply for the apartment in the event of a divorce.
What to do with a mortgage during a divorce?
A good place to start is with how divorce works. If the divorce process proceeds without property disputes, that is, the husband and wife have discussed the nuances of the division in advance, then there are 4 ways out of the deadlock dispute related to the mortgage:
- Waiver of rights seems to be the ideal solution to the problem - the one who gets the housing pays the loan. A waiver of the right to half the living space is issued with the consent of the bank and through a notary, and then the mortgage agreement is reissued to the sole borrower. However, the credit institution will approve such a turn of events, provided that the borrower proves a real ability to pay the established amount monthly.
Unfortunately, most often a mortgage loan is issued on the basis that two people will live a long and peaceful marriage, and therefore regularly deposit their share into the bank account. Therefore, when it comes to the division of obligations, it turns out that neither one nor the other borrower is able to pay the monthly loan payment on their own. Therefore, such a proposal is rejected by the bank in 80% of cases, as an unacceptable way out of an unpleasant situation;
- Selling an apartment - the solution may seem optimal for a family without children: the apartment was sold, the debt was paid off, and if there was any money left, it was divided in half. However, if the loan is repaid early, the bank loses a considerable share of its profit, so it can be extremely difficult to obtain permission from a financial institution to sell an apartment. In addition, the cost of an apartment encumbered with a mortgage is lower than that of privately owned housing.
Therefore, when deciding to sell an apartment, re-read the contract carefully, because trying to sell the property may turn out to be too expensive, and the bank may charge an additional commission for violating the terms of the mortgage agreement, and this will result in new financial expenses. As a result, the amount received from the sale of the apartment will only be enough to pay off the debt, and you will simply donate the previous payments to the bank.
- The mortgage section is the most profitable option for the bank. The essence of the decision is extremely simple: the size of the stable monthly income of each spouse is analyzed; if the amount is high enough and the parties to the loan agree, then the common housing is sold. The proceeds from the sale are used as a down payment on the purchase of two separate residential properties. As a result, one mortgage turns into two during a divorce, the bank receives increased profits, and yesterday's spouses move to a new home.
Naturally, from a practicality point of view, this option is also good for ex-spouses. But this is only possible if the former borrowers are able to confirm to the bank their ability to pay for a separate mortgage. Without direct evidence of clients' solvency, the bank will not risk re-registering a transaction that consistently generates profit.
- Section by agreement - most banks, when applying for a mortgage, offer young families to draw up a marriage contract. Unfortunately, this practice is only gaining popularity in our country. However, if future or current spouses, when applying for a mortgage loan, draw up at least an official written agreement relating exclusively to obligations for the payment or division of mortgaged residential property, then this document will significantly simplify the situation in the future.
Important! Any decisions about who will receive the mortgaged apartment during a divorce or how obligations will be divided in the future are made by 3 parties: the husband, the wife and the bank. Without the approval of the credit institution, any independent actions with real estate encumbered with mortgage obligations are considered illegal.
Unfortunately, “quiet” divorces after several years of marriage and a mass of jointly acquired property are quite rare. Such situations with the division of all property, including mortgaged housing, are resolved through the court. As mentioned above, in the absence of a marriage contract or at least a written agreement on the division of obligations, the court usually divides the purchased apartment equally.
Of course, one of the spouses may try to tilt the court’s justice in his favor by proving that during the period of cohabitation the share paid to him was greater than the share of the co-borrower. Under the weight of evidence, the court decision will redistribute debt obligations or give most of the apartment to the one who contributed more money to pay off the debt. The same decision can be made if it is proven that part of the debt was repaid from personal savings, as well as money received by inheritance or as a gift from one of the former family members.
If the couple has children
According to Article 60, children and parents have no rights to each other's property.
However, when divorcing with a mortgage and children, the court invariably takes into account the interests of the children, because they should not suffer from the decision of their parents. It is necessary that even after the breakup of the family they do not lose the conditions in which they lived before. There is no clear answer as to how exactly the court will divide the mortgaged apartment between spouses with children. All circumstances of purchasing an apartment will be taken into account. If part of the mortgage was repaid with maternal capital, the housing will be divided among all family members.
When maternity capital participates in the purchase of housing, spouses are required to provide Pension Fund employees with a formalized commitment confirming that the apartment will be the property of all family members.
If the mortgage is military
The division of an apartment taken on a military mortgage is even more difficult than in the case of a divorce for ordinary citizens.
The savings-mortgage system (NIS) does not take into account the number of military family members when issuing a loan, however, the purchased housing becomes the common property of the spouses. This causes a lot of controversy, because after a divorce, the obligation to repay the loan falls on the shoulders of the military man, but the second spouse has no obligations under the military mortgage. In 2020, the Supreme Court ruled that an apartment taken on a military mortgage is still the common property of the spouses. Despite this, local courts can only award housing to the defender of the Fatherland. In this case, the other party should file an appeal.
It should be remembered that when dividing a military apartment equally, a targeted housing loan in the event of a divorce can also be divided in half, even though the second spouse is not a military personnel.
Military mortgage
The division of real estate taken under the military mortgage program differs from other home acquisition programs. This is due to the fact that the obligation to repay the mortgage lies with the Ministry of Defense, and the owner is a serviceman. The latter does not have the right to re-register the mortgage, even if it is necessary to divide the apartment.
Solving the housing and financial issue in this case involves many difficulties. As judicial practice shows, the court makes decisions based on the family code and requires the division of jointly acquired property. But in practice, implementation of this court decision seems unlikely.
To prevent the occurrence of such incidents, financial companies, when concluding mortgage agreements, require the conclusion of a marriage contract, which assumes that the serviceman will act as the sole owner of the apartment and executor under the terms of the agreement, including after a divorce.
If the marriage was not official
Today, many young people prefer to live together without registering their relationship with the registry office.
And if people consider such cohabitation to be a civil marriage, then Russian legislation does not equate such relationships with a family union. Therefore, property acquired in such a marriage is not considered common. The apartment will belong to the person to whom the title is registered. If the home is under a mortgage, a man and a woman after a divorce can divide it into two, continuing to pay interest together. But to do this, they must initially be listed as co-borrowers in the loan agreement.
Spouses living in a “civil” marriage can contact a notary and conclude a marriage contract, which will spell out all the rights and obligations regarding the mortgaged apartment.
Lawyers' recommendations
Since the legal basis for the division of rights and obligations regarding a mortgaged apartment is poorly developed, the outcome is often determined by the professionalism of the lawyer and specific circumstances. To facilitate this process, it is rational to conclude a marriage contract, which will clearly reflect all the points regarding the rights and obligations of the husband and wife regarding borrowed real estate in the event of their divorce. It can be drawn up and notarized at any time. It is better to include the clauses of the prenuptial agreement in the mortgage documentation. Lenders are interested in documenting the rights and obligations of each spouse in the event of termination of the marriage. This preventive measure will avoid lengthy legal proceedings.
If a marriage contract has been drawn up
A prenuptial agreement is the best opportunity to avoid any difficulties in dividing property in the event of family breakdown.
You can draw it up yourself or with the help of a specialist, but in any case you will have to have it certified by a notary. Such an agreement is drawn up in three copies. Spouses receive two, and one remains with the lawyer. You need to take with you your passports, marriage certificate (if it is officially registered), as well as papers confirming ownership of real and movable property.
The prenuptial agreement states who will make the monthly loan payments and who will own the home in the event of a family breakup.
Methods for dividing an apartment
There are several ways to divide an apartment with a mortgage after a divorce:
- Surcharge. One of the former spouses can receive most of the apartment, while paying additional monetary compensation to the other. In this case, the spouse who received compensation is required to pay income tax on it.
- Share in kind. You can share an apartment in the literal sense. If the layout allows, spouses can put up partitions and decide where whose room is. Typically, such a division is carried out by mutual consent of the spouses. The court most often refuses it, since in most cases it is impossible to divide the living space in such a way as not to infringe on someone’s rights. Especially if the housing is located in a multi-storey building, where it is impossible to make an additional exit to the entrance.
- Sale. In this case, the mortgage is divided, and after the loan is repaid, the apartment is sold, and the money is divided between the ex-husband and wife.
- Exchange. As in the previous case, the former spouses divide the loan between themselves, pay it off together, and then exchange the apartment for several smaller options.
- Refusal of share. One of the spouses may renounce his share in favor of the other. Moreover, if the apartment is still under mortgage, the second spouse will have to pay the balance of the loan. The first one will be taken out of the loan agreement. However, this option is only possible if the other spouse has sufficient income to make the monthly mortgage payments.
Options for resolving the issue
Peaceful rules
- Continue to pay mortgage payments together. In this case, it is worth contacting the bank to obtain a new agreement, where loan obligations will be divided between the borrowers. It is important to understand that not all banks can provide such conditions, as this is associated with certain risks.
- A variation of the first option could be the following situation. One spouse pays off his or her portion of the mortgage while the other spouse continues to make payments according to their payment schedule. In this case, the spouse who repaid the mortgage ahead of schedule will still not be able to dispose of his share until the loan is fully repaid.
- One spouse may renounce his share in favor of the other. To do this, it will also be necessary to re-register the agreement with the bank to the solvent party.
- With the consent of the bank, sell the apartment and divide the amount from the sale. When selling an apartment, each spouse has the right to equal parts of the apartment or their cash equivalents. This method is quite difficult to implement in practice, since finding buyers for an apartment with an encumbrance is not easy. And the selling price in this case may be quite different from the market price.
- Pay off the mortgage and sell the apartment. This is the simplest option in terms of paperwork.
IMPORTANT: all agreements between spouses should be drawn up in writing and notarized to avoid further disputes. Personal agreements should be agreed upon with the bank in advance, since a legal change in the mortgage loan agreement is possible only with its consent.
Mortgage division
How is a mortgage issued before marriage divided?
In practice, situations where a mortgage is issued before marriage occur quite often. Since mortgage obligations stretch over many years, when the relationship is formalized, the loan will already be paid from the family budget. And this makes it possible, in a situation of divorce of spouses, not only to relieve oneself of the obligation to repay the loan, but to demand the recovery of one’s share of the paid funds from the main borrower.
How is the mortgage divided in the event of a divorce between spouses and children?
If there are children, the share of ownership in the home changes in favor of the spouse with whom the children ultimately remain. Further, the mortgage section takes into account this fact. By court decision, the spouse with whom the children remain after the divorce receives a larger share in the apartment, in addition, a large share of credit obligations is proportionally transferred to him.
IMPORTANT: When selling a mortgaged apartment, minor children should be discharged from it. Otherwise, the guardianship authorities may be interested in such a transaction. Which, in turn, can lead to quite deplorable events, including deprivation of parental rights on the basis that the parents cannot provide the child with decent living conditions.
Maternity capital funds are often used to repay a mortgage loan. In such situations, after the encumbrance on the apartment is removed and the mortgage loan is paid off, the children should be allocated shares in the apartment.
How is an apartment divided with a mortgage?
Public opinion says that all property should be divided in half. But this is not always the case. The apartment may not be divided in equal shares. The size of the share in an apartment when dividing it may depend on many factors: the presence of minor children, the moment the mortgage was acquired before or after marriage, who made the majority of the loan payments, and other conditions. Shares in the division of an apartment are determined in court if a marriage contract has not been drawn up or personal agreements have not been reached between the former spouses.
Resentment and other difficulties
Whether the issue of dividing a mortgaged apartment is resolved by an agreement with a notary or in court, it is better for the spouses to be able to maintain peaceful relations.
If the apartment is under a mortgage that both husband and wife must pay, it is very important that neither of them defaults on payments. If this happens, the debt will begin to grow (even if the second spouse regularly pays his part of the loan). If the delay is more than four months, the bank can take away the housing in order to sell it and thereby pay off the debt. This often happens when one of the spouses, having stopped living in the mortgaged apartment, stops paying the loan, believing that he is not obliged to do this, since he does not use the premises. However, this position is incorrect. After all, he remains one of the owners. If a person gives up the right of ownership, he may not pay the mortgage.
Therefore, it is best for the ex-husband and wife to find a common language and jointly resolve the issue with the mortgage apartment, so that later they do not lose their home and the money that has already been paid for it.
How to resolve the issue of dividing an apartment in a mortgage during a divorce?
Free legal consultation
There are several ways to resolve the issue of dividing an apartment in a mortgage during a divorce. Please note that you must first notify the bank that the parties intend to dissolve the marriage. It is better to do this before submitting the application itself, so that the credit institution has time to prepare documentation and also put forward proposals for repaying the loan.
Keep in mind: divorce is not a reason to terminate the loan contract, and the debt will have to be paid in any case.
The spouses will have to agree on whether one person will pay the loan alone or whether the amount of the debt will be divided in half. In any case, the bank will offer several options for resolving this issue.
- The best option for all parties would be to put the apartment purchased with a mortgage up for sale and pay off the debt from the proceeds. In this way, it will be possible to repay the entire loan, which will suit both the credit institution and the former spouses. But you should take into account the fact that the bank does not always agree to this option, since finding a buyer for a mortgaged home is a rather labor-intensive process.
- Taking into account Article 39 of the RF IC, everything that was acquired by spouses in a joint marriage is divided into two parts and distributed between them. This applies to both an apartment taken on a mortgage and a loan. In the absence of an agreement between the spouses, the debt is distributed between them, and each party undertakes to pay it on time. Also, each party retains the right to own one part of the housing. But this option has a significant drawback: if one of the parties does not want to pay its part of the debt or does so untimely, the bank can legally seize and sell the apartment to pay off the debt, leaving both parties to the conflict with nothing.
- Either party can repay its part of the loan ahead of schedule, paying the debt in full in order to be freed from loan obligations. But in this case, the party will not be able to rightfully become the owner of the part of the apartment allocated to it by law until the second party pays its share of the debt.
- One of the parties may refuse the part of the apartment assigned to it in favor of the second spouse, then the second party will need to pay the mortgage on its own. In this case, the bank will be forced to conduct a thorough check of the solvency of the party obligated to pay the debt. If the solvency is unsatisfactory, the opportunity to repay the loan in this way will be denied, and then another option will have to be chosen.
Sooner or later, either party may wonder whether it is possible to somehow waive the need to repay the loan. Answer: yes, you can. But one should take into account the fact that by refusing to pay the money, the party also loses its rights to own part of the apartment.
