The law states: a child has the right to live and be raised in a family, to receive care from his parents and to live with them.
The dissolution of a marriage between spouses not only terminates the regime of joint property, but also deprives the child of the right to grow up in a full-fledged family. Statistics show that in Russia almost every third family consists of a child and a mother.
In such a situation, when parents divorce, it is necessary to preserve the psychological state of the child and maintain his financial condition until he reaches the age of majority.
Read the article about how to dissolve a marriage if you have minor children without violating their rights.
What should you think about “on the shore” before taking out a mortgage for two?
Yuliy Rovinsky: Before becoming co-borrowers, it is worth thinking about the consequences that may occur in the event of a divorce. In our opinion, the main risk for each of the borrowers is the fact that he [the borrower] remains a joint and several debtor of the loan to the bank, regardless of what rights to the apartment he retains. In other words, even if the apartment became the property of one of the spouses after a divorce, the risk remains that in case of non-payment, the bank may make a claim against the other spouse, who no longer has ownership rights to the housing.
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Pavel Ivchenkov: To avoid problems, you need to draw up a written agreement on what to do with the mortgage and apartment in the event of a divorce. It must state who will get the apartment (one of the spouses or will be divided into shares), who will receive compensation (if one of the spouses renounces his share), who will then pay the mortgage. This agreement must be executed by a notary. It is also worth agreeing with the bank and stipulating in the mortgage agreement what will happen to the mortgage and apartment in the event of a divorce of the borrowers. Some banks agree to include these clauses in the mortgage agreement.
The role of the mortgage bank in divorce
A change in the marital status of a couple in the presence of a mortgage encumbrance on the home requires mandatory notification to the credit bank, because divorce is recognized as a violation of the loan agreement. Before a divorce, you must first resolve issues with the bank, and only then go to court and the registry office. If it was not possible to notify the creditor bank before the divorce process, you should contact the banking organization after the divorce, but as quickly as possible.
Divorcing people must agree on the division of real estate with the creditor bank, since they are usually the borrower and co-borrower of the loan apartment. Exception: options for property division are provided at the stage of obtaining a mortgage through a special agreement or marriage contract.
Being in conflict-emotional relationships after divorce, recent spouses often ignore the need to make mortgage payments. This gives the bank the right, if there is a three-month delay, to initiate legal proceedings and annul the divorced borrowers’ title to the mortgaged apartment and sell it at auction to compensate for the amounts lent. Note that this is the worst situation for a mortgage borrower.
How to get a divorce in a civilized manner if there is a mortgage for two?
Yuliy Rovinsky: If the concept of “civilized” implies the ability to divide property and debts without going to court, then doing this is quite problematic. However, when reaching agreement between spouses on property issues, there are ways that will allow you to get by with “little bloodshed.” If the spouses have agreed that upon division each will receive 1/2 of the ownership of the apartment, then after completing the appropriate procedures with the registrar's authorities, they should apply to the court with an application to divide the amount of debt and interest on the loan. Court practice on this issue is ambiguous, but the most recent decisions give a positive answer.
Pavel Ivchenkov: You can get a divorce “in a civilized manner” only with the help of a peaceful pre-trial agreement. It is better to involve lawyers for this and have all agreements drawn up in writing and notarized. Spouses can either divide the apartment and the mortgage payment into parts (equal or whatever they want), or one of the spouses will give up his share in the apartment in favor of the second, but then the mortgage will be paid by the spouse who receives the entire apartment. In the second option, the spouse who refuses the apartment can do so for free or receive compensation for his share from the second spouse (the so-called “compensation”) - this is at the discretion of the person himself. If he renounces his share in the apartment, the spouse must contact the bank so that it transfers his part of the mortgage debt to the second spouse, who will receive the apartment. There is also a third option - the spouses can sell the apartment purchased with a mortgage, pay the remaining debt to the bank from the amount received, and divide the rest of the money at their own discretion. Any of the actions described above requires permission from the bank, because with a mortgage the apartment is pledged. Thus, Article 391 of the Civil Code of the Russian Federation states that the transfer of a debt from a debtor to another person can be made by agreement between the original debtor and the new debtor. In this case, the debtor's transfer of his debt to another person is permitted with the consent of the creditor and in the absence of such consent is void. And the mortgage law prohibits performing any actions with the collateral without the permission of the mortgagee, i.e. in this case the bank.
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Alimony for minor children
One of the basic rights of a child that must be respected after a divorce is financial support from a parent who does not live with him permanently. Therefore, such a parent is obliged to pay child support until the child reaches the age of 18.
Family law establishes that the procedure, form and amount of alimony payments to children are determined by the parents by drawing up an alimony agreement. At the same time, the parents themselves determine the moment when the collection of alimony for the maintenance of the child begins.
A child support agreement is equivalent to a document of execution; if one of the parents does not fulfill the obligations under the agreement, then the second parent has the right to apply to the judicial authorities for enforcement.
When concluding an alimony agreement, there is a payer (the parent who pays alimony) and a recipient (the parent who receives payments for the child) of alimony, as well as a child, if he is 14 years old at the time of divorce.
The law does not provide for a specific form of alimony agreement. It is necessary that the provisions of the agreement do not contradict the laws and do not violate the rights of the child.
The agreement should include the following:
- information about the payer, recipient of alimony and their minor children;
- the method, procedure and amount of money to be paid;
- term and frequency of payments;
- the amount of penalties in case of late payments;
- other conditions that are introduced by mutual agreement of the parties to the agreement.
The amount of alimony is not strictly limited for the entire period of payment. If circumstances arise that affect the financial situation of the payer, the amount may be reduced or increased.
In the absence of a child support agreement, the court independently determines the amount of payments for child support.
The size of the payment depends on the number of children for whose maintenance alimony is required.
The amount of alimony in accordance with the law is:
- 1/4 of all types of parent’s earnings, if there is one child;
- 1/3 of all types of parents’ earnings, if there are two children;
- 1/2 part of all types of parents’ earnings, if there are three or more children.
The alimony payer may petition the court to reduce the amount of alimony due to financial difficulties due to loss of work or for other valid reasons.
What to do if you couldn’t get a divorce in a civilized manner?
Pavel Ivchenkov: If a civilized divorce did not work out when the mortgage was issued for two spouses, then there is only one option left - going to court. In this case, each of the parties will present their demands and their justifications to the court, and the court will decide how to divide the apartment purchased with a mortgage, and who will pay it in what shares. True, in such cases the court always involves a third party - the bank. As a rule, the court makes one of the following decisions:
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– The apartment becomes the property of one of the spouses together with the obligations to pay the remaining part of the mortgage. In this case, the court collects compensation from the wife in favor of the husband in the amount of half of the paid value of the mortgage. That is, for example, the apartment goes to the wife along with the mortgage debt, and the husband gets compensation.
– The apartment is divided between the spouses into shares (most often into equal shares, but the share of the spouse who will directly live with minor children can be increased), and each spouse pays the mortgage for their share independently. No compensation is awarded to either spouse.
Mortgage section in case of divorce with children: features
When minors grow up in a family, you almost always have to go to court to dissolve the marriage. The exception is the situations described in Art. 19 of the Family Code (RF IC).
Moreover, the presence of children here is not an obstacle to terminating a marital relationship - an application for divorce is submitted only from one side.
But how does divorce happen if there is a mortgage and a minor child? In this case, the lawsuit contains several demands at once.
Indicative list:
- mortgage apartment section;
- determining the place of residence of children;
- distribution of the outstanding part of the loan (in this case, a refusal will necessarily follow).
Accordingly, the state duty, which is used to pay for a claim for division of property, is calculated differently . The remaining debts are also included in the price of the claim according to the rules of Art. 91 Code of Civil Procedure of the Russian Federation.
In addition, a divorce with children and a mortgage may mean that the court has the right to violate the original rule of equality of shares. This follows from the content of Art. 39 RF IC.
How will the paid and remaining payments be divided in the event of a divorce?
Pavel Ivchenkov: If during a divorce one of the spouses abandons the apartment in favor of the other, then he can claim compensation, usually in the form of half the cost of the apartment. In this case, the spouses can agree among themselves on the amount of compensation independently; they know better who is owed what.
There are cases when the second spouse receives compensation in the amount of the mortgage debt already paid at the time of divorce (i.e., the first spouse buys out the mortgage from the second or buys out the part that the second paid from his income), and the remainder of the debt is paid by the one to whom I got the whole apartment. If the spouses cannot agree, the amount of compensation is determined by the court. As a rule, the court simply divides the market value of the apartment in half or divides the cost of the mortgage in half (finds it out from the bank).
If during a divorce neither spouse gives up the apartment in favor of the other, then each receives their own share in it (they agree on it themselves or through the court). In this case, the remaining part of the mortgage unpaid at the time of divorce is also divided into shares that are equal to the shares in the apartment. And each spouse pays their share of the remaining debt. Previous payments (debt already paid at the time of divorce) are not taken into account, and in this case no one is entitled to any compensation.
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Tips and conclusions
As you can see, divorce in the presence of a mortgage and children in the family is a troublesome and somewhat nervous matter. That is why, before starting the divorce process, it is worth visiting a lawyer and assessing all your options.
Before applying for a mortgage, if the marriage is not entirely strong, it is advisable to conclude a prenuptial agreement. This will eliminate misunderstandings during the divorce process, make the work of the court easier and lead to a positive decision for both divorcees.
First of all, you need to remember about the child. During the trial, he is subject to psychological pressure, since he becomes the object of division.
Neither the court nor the board of trustees will harm the child, even if there is a lot of property and it is difficult to divide the mortgage. Only a systematic and balanced approach will give positive results, and the divorce will take place in a peaceful manner.
Children of divorce:
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Discussion: 2 comments
- Natasha says:
05.11.2018 at 02:29In the countries of the former USSR, unfortunately, it is not customary to conclude marriage contracts; everyone believes that this is not a necessity, but in vain, I would make a law that would force all young people to enter into a contract.
Answer
- Denis says:
01/26/2019 at 12:21
And girls
Answer
Have there been cases in your practice when people changed their minds about getting divorced because of the mortgage?
Pavel Ivchenkov: No, there were no such cases. But I can say that here everything depends on the reasons for the divorce and the financial condition of the people: if these are minor quarrels, everyday disagreements that one of the spouses can no longer tolerate, then a mortgage can “save” the family, since too much money is at stake . If the reason for the divorce is some difficult circumstances, then a mortgage will not save the marriage.
See also: State duty for divorce in 2015 →
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