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Burdened housing: mortgage apartment can be retained by one spouse in case of divorce
A mortgage apartment purchased in marriage is generally considered to be the jointly acquired property of the spouses and is divided equally between them. However, in practice, the division of housing can be much more difficult, since the apartment is secured by the bank, which means that any decisions must take into account the interests of the lender. For more information about how mortgage housing is divided during a divorce and in which cases it can be left to one spouse, see the Izvestia article.
Which apartment is recognized as a joint property
Family law is based on the principle of equal rights of spouses. Therefore, real estate acquired in marriage at the expense of common family income is recognized as joint property, regardless of in whose name the loan or ownership is issued.
Lawyer Fatima Karabasheva explains that the fact of marriage registration is a key point in determining the ownership regime.
— Marriage begins from the moment of its registration with the registry office. All property acquired during the marriage period is considered jointly acquired, unless proven otherwise. The exception is cases when property was acquired before marriage, received as a gift or inherited," she noted.
According to the expert, if the apartment was bought before the marriage was registered, it remains the personal property of the spouse to whom it is registered.
"If one of the spouses owns an apartment acquired before the marriage was registered, it will remain his personal property even in the event of a divorce and is not subject to division," Karabasheva explained.
When can one spouse stay in a mortgage apartment?
Despite the general rule of equal division of property, a court may recognize a mortgage apartment as the personal property of one of the spouses if convincing evidence of the origin of the funds is provided.
— For example, if one of the spouses can document that part of the funds for the initial payment or mortgage repayment was received as a gift from parents or from other personal sources, the court may take this into account when dividing the property, — said the lawyer.
In such cases, documents confirming the origin of the money are crucial.
— It is important to prove the source of funds. This may be a money donation agreement, a certificate of inheritance, a contract for the sale of personal property, bank statements on the movement of funds, a receipt for receiving money, or confirmation of the transfer of funds directly to the seller," explained Karabasheva.
However, if personal funds were mixed with the total family income, it would be much more difficult to prove their origin.
— The court evaluates the totality of evidence. If the money was mixed with the family's common funds, it becomes more difficult to confirm the personal nature of the investments," the expert emphasized.
What are the ways to split a mortgage apartment?
In practice, there are several options for the mortgage housing section. The simplest of them is an agreement between the spouses. The former spouses can negotiate the sale of the apartment with the consent of the bank, pay off the mortgage debt from the proceeds and divide the remaining amount. It is also possible that one of the spouses assumes the obligations of the loan and pays compensation to the other for his share.
If it is not possible to reach an agreement, the dispute is resolved in court. At the same time, the bank is necessarily involved in the process as a third party, since the apartment is pledged to it.
How is the spouse's compensation calculated?
If one spouse stays in the apartment, the second spouse is entitled to monetary compensation, the amount of which is calculated based on the market value of the apartment.
— The general principle is as follows: the market value of the apartment is taken at the time of the division, the mortgage balance is deducted from it, and the resulting amount is divided in half, — explained Karabasheva.
For example, if an apartment costs 8 million rubles, and the remaining mortgage debt is 3 million rubles, then the net cost of housing will be 5 million rubles. Accordingly, the compensation for the second spouse will amount to 2.5 million rubles.
According to the lawyer, to determine the value of real estate, the court, as a rule, appoints an appraisal examination.
— In addition to the payment of money, other options are possible: the transfer of other property instead of compensation or installment payments, — she specified.
How to prepare for the mortgage apartment section
The peculiarity of mortgage housing is that it is secured by the bank. Therefore, any changes to the terms of the loan require the consent of the lender. If the spouses want to renew the mortgage for one of them, the bank must make sure that he is solvent. Without the bank's consent, it is impossible to change the borrower or release the second spouse from debt obligations.
According to the lawyer, the documentary base plays a key role in court disputes.
— First of all, it is necessary to collect all the documents: loan agreement, payment schedule, bank statements, apartment purchase and sale agreement and documents on the origin of funds, - recommended Karabasheva.
The expert also advises determining the strategy in advance: whether the spouse plans to keep the apartment for himself, whether he is ready to sell the property, or whether he is considering paying compensation.
— It is important to take into account the interests of the bank, since the mortgage apartment is secured. It is impossible to change the borrower or the terms of the loan without the consent of the lender," the lawyer emphasized.
At the same time, she noted that in some cases it is more profitable for spouses to conclude an amicable agreement.
— Lawsuits on mortgage real estate can last from six months to a year or more. Therefore, sometimes it is more reasonable to negotiate and formalize an agreement on the division of property," concluded Karabasheva.
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