Divorces have become a sad trend of modern marriage relationships. According to statistics, in the first two to three years after the marriage is conclusted up to 50% of families. Meanwhile, the divorce of spouses in many cases entails and the section of the property.
According to Part 1 of Art. 38 of the Family Code of the Russian Federation, the section of the common property of spouses can be produced not only in the process of termination of marriage, but also in the marriage itself. In art. The 34 of the RF IC is emphasized that the joint property is the property of spouses, which was acquired by them in the process of marriage relations. But what about real estate, acquired by means of mortgage lending? Is it a joint property of spouses or belongs to the spouse that makes a mortgage loan?
The Family Code of the Russian Federation defines an apartment acquired in a mortgage, as co-acquired property. The mortgage loan duty, according to established judicial practice, is usually distributed between spouses in those fractions in which the apartment is issued. If the spouses are owners of ½ apartments each, then the loan debt is also distributed between them equally.
Because spouses are always coaches in mortgage, if one of the spouses will repay the loan on himself, he will receive a full right to claim compensation in full for their funds paid from the second spouse.
Lawyer Anna Volodchenko
The most optimal and fragile way of section of the mortgage between spouses occurs according to their mutual agreement. If it fails to comprise, it remains to share a mortgage apartment in court. What are the options in this case? The first option is a mortgage apartment and payments obligations depart that from spouses who receive a higher wage and is able to pay a mortgage loan on their own.
If one of the spouses are ready to abandon his rights to the part of the mortgage apartment and from the obligation to pay debt, it is necessary to conclude an agreement on the division of common property certified by a notary. At the same time, that spouse that receives an apartment is obliged to pay the second spouse that refuses the right to apartment, ½ part of the amount that was paid as a mortgage payments during the existence of a marriage relationship.
The second option is the sale of a mortgage apartment, repayment of debt to the credit institution, and if any means remain - the section of them between spouses in an equal proportion or in certain fractions. But it is necessary to understand that in both cases the spouses will need the consent of the credit organization to carry out such manipulations with a mortgage apartment.
In case the spouses before marriage or during the marriage, a marriage contract was concluded, then the apartment taken into the mortgage is divided into the marriage contract.
Thus, mono offer the next algorithm of actions on the section of the mortgage apartment during divorce. First of all, it is necessary to conclude a settlement agreement on the division of common property and mortgage debt. Then the divorce is then officially registered, after which the former spouses are referred to the credit institution with the global agreement and a certificate of divorce, as well as documents on the amount of the income of her husband and wife in the last year.
If the bank agrees with the global agreement of the spouses, new mortgage documents are drawn up - either one loan agreement on the spouses who remains the apartment and who takes over the obligations on credit payments, or two credit agreements on both former spouses if they continue to pay Mortgage together.
A separate situation is a section of a mortgage apartment at a divorce in the case of juvenile children. In this situation, the court, as a rule, leaves a large proportion of the apartment of the spouses with whom
minor children. But in this case, the majority of payments on the loan will also have to pay to that of spouses who will get most of the apartment. It is also worth remembering that the presence of a child will not be considered as a factor that prevents the recovery of debt in case of termination of payments on a mortgage loan.
If one of the spouses or both spouses stop repaying a mortgage loan, then the bank exposes it for sale. In this case, the standard mechanisms for the implementation of the laid property are already included. If after selling the apartment there are any means over those who charges the bank for debt obligations, they are equal to the proportion of the proportions between the former spouses.
Of course, the competent section of the property, including a mortgage apartment, requires the involvement of a qualified lawyer or a lawyer who will help protect their rights and legitimate interests in a dispute with a bank or with another spouse.