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To understand whether property that was acquired by a husband or wife before marriage is divided during a divorce, you should refer to Art. 36 of the Family Code. According to its rules, such property is recognized as the personal property of the person who acquired it, both during the existence of the marriage and after its breakup. Existing exceptions to this rule are also recorded in articles of the RF IC and the RF Civil Code. Let's look at the question in more detail.
Mortgage loan before marriage
The term included in the subtitle of the article means obtaining a mortgage before registering a marriage. In other words, the acquired property is not jointly acquired and belongs to one of the spouses. It is important to understand that this same person also bears financial obligations to the bank, which are also of a purely individual nature.
Another important legal point deserves special mention. Despite the registration of a mortgage before marriage, loan payments can be made after registration of the relationship, and from the joint family budget. In this case, the second spouse has grounds to claim part of the housing, in the payment of which he participated.
The situation becomes even more confusing if a child was born in the marriage, and maternity capital funds were spent to pay off the mortgage debt. In this case, according to the law, part of the housing also belongs to the child.
Documents and statement of claim
In addition to the statement of claim, the specifics of its preparation are regulated by Article 131 of the Code of Civil Procedure of the Russian Federation, the court will also need to provide:
- Passport.
- Documents confirming the fact of purchasing an apartment before marriage.
- Documents confirming the fact of major repairs or other types of work, due to which the value of the property has increased significantly.
- Marriage certificate.
- Certificate of divorce.
- Other documents affecting the consideration of this case. For example, a certificate of inheritance, under which the heir received a significant amount, which he spent on renovating the property.
Claims of this type are related to property and therefore payment of the state duty is regulated by subparagraph 1 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation. The maximum payment is 60,000.00 rubles, and the minimum cannot be less than 400 rubles (the latter is not relevant in our situation, since the apartment will obviously cost more).
Real estate usually costs over 1 million rubles and only in some cases less. Let's look at two examples:
Example No. 1: The cost of an apartment is 4 million rubles. 1 million is automatically deducted from this amount. Only 3 million are taken into account, of which 0.5% is calculated. A fixed payment of 13,200.00 rubles is added to the amount received. The total payment will be: 15,000.00 + 13,200.00 = 28,200.00 rubles.
Example No. 2: An apartment costs 800 thousand. In this case, 200 thousand is subtracted from the amount. Of the remaining 600,000.00 rubles, 1% is determined, to which a fixed payment of 5,200.00 rubles is added. The total expense will be: 6,000.00 + 5,200.00 = 11,200.00 rubles.
What the law says
The rules for the division of property, including the situation if an apartment was purchased with a mortgage before marriage, are regulated by the current edition of the Family Code. The general provisions of the legislative act establish the following basic principles:
- Spouses are given the opportunity to resolve property disputes independently - by agreement of the parties and without going to court. The result is the conclusion of a settlement agreement or another document similar in content.
- If the settlement of the division of property during a divorce occurs in court, you should be guided by the rules established by the state:
- property acquired during marriage is divided either in accordance with the provisions of the marriage contract, or - in the absence of one - in half;
- housing purchased before marriage registration, including a mortgage, remains the property of the spouse who purchased it, as well as the obligation to repay the debt to the bank;
- The presence of children and with whom they live has a significant influence on the judge's decision. This does not apply to the personal property of the second parent, including a mortgaged apartment, but may lead to the assignment of alimony.
The easiest way to divide an apartment during a divorce is to reach an agreement without going to the courts. The terms of the agreement should be documented, or even better, followed by notarization.
This format for resolving a dispute minimizes associated costs and helps maintain good relations between former spouses.
When property is recognized as common
If the court determines that the second spouse should be allocated a share in the apartment purchased before marriage, then there are several options for further division:
- spouses officially determine shares in real estate and continue to use it jointly;
- the existing apartment is sold, and the proceeds are divided according to the shares allocated to each;
- housing is recognized as the property of one spouse with the need to pay monetary compensation in favor of the second according to the allocated share;
- The spouses are exchanging an apartment. For example, they change it to a room and a one-room apartment;
- division in kind. The option is possible, but difficult to implement. The most suitable for its implementation is a private house, which has two entrances and at least the ability to make a division in such a way as to build an isolated bathroom and kitchen in both parts of the house. This option is also possible for apartments that were created by combining two adjacent ones.
Division of mortgage before marriage in case of divorce
The general principles for dividing property are listed above. They apply to any assets, both acquired during marriage and acquired by spouses before its conclusion. It is important to understand that resolving such conflicts is a complex task, as judicial practice clearly demonstrates.
Some of the possible complications, such as the presence of a child and family capital or joint repayment of a debt to the bank, have been mentioned above. Resolving such a dispute requires a thorough study of the circumstances of a particular case and taking into account many related factors. Therefore, the final decision of the judge simply cannot be predicted.
What is due to the second spouse in a divorce?
The second spouse, who was not involved in obtaining a mortgage loan, cannot apply for an apartment or house. An exception is the situation when settlements with the bank were made after registering the relationship from the family budget. In this case, the second spouse has legal rights to part of the housing, which are extremely difficult to calculate in quantitative terms.
A similar situation arises when it comes to refinancing a mortgage entered into before marriage, but directly during marriage.
Arbitrage practice
The practice of dividing apartments acquired as personal property is very extensive.
- Citizen Smirnova applied to the court with a request to divide the apartment that her husband bought immediately before the wedding. According to the purchase and sale agreement, the cost of the apartment upon purchase was estimated at 2.5 million rubles. The plaintiff stated that during the marriage, which lasted 2 years, a lot of renovations were done in the apartment. An independent appraiser was invited to determine the value at the time of the divorce. The apartment was valued at 4 million rubles. The judge ruled that the apartment will remain the property of the plaintiff’s husband, and he will be obliged to pay her compensation in the amount of 750 thousand rubles, i.e. half the amount by which the cost of the apartment increased.
Thus, in 2021 the wife will be able to divide the husband’s apartment, purchased before marriage, only in exceptional cases. If she proves that the cost of this housing has increased due to her personal savings or funds from the general family budget.
FAQ
In case of divorce, who owns the apartment purchased with a mortgage before marriage?
In the absence of additional introductory information to the spouse who was involved in processing and repaying the mortgage loan.
When does the second spouse receive rights to part of the housing purchased by the first with a mortgage before marriage?
If you are involved in paying off a debt to a bank or refinancing a mortgage, but after marriage.
What methods of resolving a dispute over the division of property during a divorce are allowed by current legislation?
The first is the conclusion of a peace agreement on terms that suit both parties. The second is by law, when jointly acquired property is divided in accordance with the marriage contract or in half.
How not to go broke when dividing property?
Is it worth using free consultations or should you immediately prepare to pay for a specialist’s work? Of course, you can go to the first consultation for free and during it you will find out that your situation is much worse than you previously thought, and how much you will have to pay if you do not immediately sign a contract for services. Be careful, most likely you will simply be scammed out of money, since free cheese can only be found in a mousetrap.
Avoid obviously fraudulent “free” offers. The work of a lawyer is a complex process that requires appropriate payment. A decent specialist, when making an appointment for the first visit, will tell you the approximate amount that representation in court will cost. An experienced lawyer knows all the intricacies of the law and will try to find legal loopholes that make it possible to violate the principle of equivalence of shares.
During a divorce, everything that each spouse acquired during the marriage will be divided. The total mass will include:
- earnings;
- income from deposits and shares;
- securities and shares in companies;
- shares and deposits;
- real estate;
- cars;
- jewelry and luxury items.
Prudent people enter into an agreement on the division of property. It can be issued during marriage, during the divorce process and after it. The statute of limitations for such cases is standard - 3 years, but it is better not to delay the division, since calculation of this period may arise during legal proceedings. In addition, the cost of things changes over time, for example, a car loses significant value every year of operation.
It is better to file a claim for division of property separately from the petition for divorce. These processes should not be combined. This will allow you to quickly receive a divorce stamp, and then slowly resolve property disputes. Otherwise, the divorce process may drag on significantly due to disputes about the ownership of the apartment, car, as well as loans and debts.
What are the risks of delaying a divorce?
We have already talked about the fall in property values. The amount of debts may change in the same way. If the husband and wife do not agree on who to pay on the loan, regular payments are missed, and penalties and fines are quickly added to the debt.
While there are disputes about the division of property, former spouses may form new families and have children. While the court is considering a general claim for divorce and separation, children will be born and go to kindergarten in single-parent families.
Any person who has gone through a divorce will confirm that it is necessary to go to a lawyer even before filing an application to court. A lawyer will warn you about the various nuances of the process and help you avoid the most losing steps.
If a divorcing couple has children, how to divide the mortgage
When dividing the property of spouses who have common children, many factors are taken into account. This also applies to housing purchased with a mortgage loan.
If ownership of an apartment is registered in the name of a spouse before marriage, then the presence of children does not have any impact on its division. After a divorce, the apartment remains the property of the person to whom it was registered. However, a point should be noted regarding the residence of children. If, after the divorce of the parents, they move to housing that is inferior in parameters to this apartment, the court may make a decision on the possible residence of the children in the apartment purchased with a mortgage until they reach the age of majority. Accordingly, the spouse with whom the children remained after the divorce will also be allowed to live with them.
If maternity capital was used to repay the mortgage, the apartment will be divided in equal shares between all family members, regardless of the amount of other funds contributed by the parties.
In a situation where the loan was repaid during cohabitation, but without the use of maternity capital, the apartment is divided according to the standard legal scheme - equal shares between both spouses, or one of them is compensated for the cash costs of repaying the loan.
Examples
Before marriage, the husband purchased a car, which the wife also used during the marriage, but after the divorce, the car remained the property of the husband.
With the money accumulated by the wife before marriage in a deposit account, furniture and household appliances were purchased to improve the joint apartment. After the divorce, the spouses divided the apartment, but all other property purchased with the wife’s personal money became her personal property.
The couple lived together in the apartment, which the wife inherited from her grandmother. The husband was registered in the living space, so after the divorce he demanded that his share be allocated.
However, the apartment remained the personal property of the wife - according to Article 36 of the RF IC, it is not subject to division.
However, there are exceptions to the general rule that a husband or wife has undivided ownership of property acquired before marriage.
According to Art. 37 of the RF IC and clause 2 of Article 256 of the Civil Code of the Russian Federation, the personal property of one spouse can be recognized as joint if, at the expense of the second spouse or joint funds, this property has been improved (repaired, reconstructed), as a result of which the value has increased significantly.
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If the apartment was renovated using common money
There are cases when the division of living space acquired before the legalized relationship by one of the spouses is still carried out. This happens because during the period of official relations, significant repairs were made to the premises using common money.
After this, its price was increased. Now, in a divorce, everyone can get exactly half. But the spouse interested in the division will have to prove the existence of this right. What can serve as evidence:
- assessment results;
- documents confirming that the repairs were made after the wedding;
- documents that confirm that the repairs were made with joint money;
- witness statements.
The size of the share invested in repairs by the second spouse must be significant
Note! You can't always win a lawsuit. If the repairs were paid for by a third party, the other party can provide their evidence. For example, a wife bought a living space before marriage. After the wedding, her parents paid for the renovation. If the husband bids for separation, he will most likely lose.
