Upon divorce, not only jointly acquired property is subject to division, but also debts.

In most cases they are divided equally, but there are situations that require special consideration.

Upon divorce, it is necessary to divide all accumulated during the marriage. life together debts. The following are taken into account:

• bank loans for various needs;
• mortgage;
• money borrowed from private individuals.

Note!

The law does not take into account the person in whose name the loan is issued. The debts of one of the spouses during an officially registered marriage are considered common by default.

According to family law, a husband or wife cannot assume all financial obligations, completely releasing the other party from them. Exceptions may be:

• unlawful actions of one of the spouses (for example, theft);
• spending family property for personal interests;
• complete lack of income from one of the parties;
• interests of the child.

Debt section

If the spouses have reached a common opinion regarding the division of joint or personal debts, a written agreement is drawn up. This document lists all payment obligations, indicates the amounts due to each party, and material compensation (for example, a car, a share in an apartment, valuables).

In a situation where one of the spouses does not agree with the obligations presented, the debt is divided through the court

If the borrowed amount is not repaid, you will have to take into account not only the opinion of the former spouses, but also the interests of the creditors. They often demand the return of money from the person in whose name the loan agreement was drawn up. The marital status of the debtor, divorce and division of property are of least interest to creditors. Divorce may be a reason for the rapid collection of funds and refusal to grant a deferment.

Similar questions most often arise when dividing mortgage debt. The bank that issued the loan is interested in receiving money as quickly as possible; demanding it from one debtor is much easier. The unequal income of the spouses adds to the complexity, especially if one of them does not work and does not have his own funds.

A financial organization may in every possible way prevent the official division of debt, realizing that it will be difficult to collect the required amount from an insolvent debtor. When dividing, you will have to take into account not only the principal amount and interest, but also penalties for late payment.

Debt disputes

When a loan is issued to one of the spouses, financial obligations are automatically transferred to the one whose name appears on the contract. However, it is not difficult to prove that the money was spent on joint property. It is enough to provide statements about the payment of a mortgage or consumer loan from general funds. Strong evidence is the signatures of the second spouse on the loan agreement (for example, a mortgage).

Often, fictitious promissory notes of one of the spouses, drawn up in the name of a fictitious person and not implying a real transfer of money, appear in court. Such operations are carried out with the aim of reducing the share subject to division.

It is difficult to prove the nullity of a fake promissory note. In addition to eyewitness accounts, additional procedures may be needed: determining how long ago the document was drawn up, handwriting examinations, analysis of the financial condition of each of the parties to the transaction.

Litigation over the division of debts requires the participation of an experienced lawyer

A lawyer with extensive practice in property disputes is able to represent the interests of one of the parties in court, draw up a claim, and help in collecting documents. If necessary, the lawyer will appeal the court decision or file a counterclaim.

Personal debts: features of collection

Sometimes borrowed money goes to the general needs of the family. But often a husband or wife borrows amounts for personal needs. For example, with borrowed money, a spouse can purchase an expensive tour and leave without the knowledge of his family.

Personal debts include funds spent on:

• for the repair of an apartment or car purchased before marriage, gifted or inherited;
• for the purchase of luxury goods and other items for personal use.

To prove that the money was spent on personal needs, it is necessary to confirm that the property for which the funds were spent was acquired before the registration of the relationship and was not intended for joint use.

Note!

Personal expenses will also include those made without the knowledge of the partner. However, this is not easy to prove and may require the involvement of witnesses.

Personal debts can also include monetary penalties imposed on one of the spouses as a result of offenses (causing material damage, theft, road accidents). If the debt is not repaid on time, the creditor has the right to demand the division of family property to recover the funds due from a specific share.

There are controversial issues that require separate consideration in court. For example, if an apartment was taken out on a mortgage before marriage, part of the payments could be made by one spouse, but subsequent funds could be paid from the general budget. In this case, the spouse, who is not the owner and does not have rights to the apartment, may demand the allocation of part of the money paid for it.

In some cases, debt incurred before the registration of the relationship may be recognized as common

For example, when receiving a mortgage and making payments from common family income, an apartment taken on credit before official registration may be recognized as joint property of the couple. In case of divorce, it is subject to division, and the remaining payments are proportionally divided between the former spouses.

Collection procedure

According to the RF IC, collection of the debts of one of the spouses can only be imposed on property that belongs to him personally. This role may include:

• real estate acquired before marriage;
• a car purchased before official registration;
• valuables and luxury items given or inherited.

The creditor may demand the sale of personal belongings through a bailiff

If the debtor does not have valuable things and real estate purchased before marriage, a division of common property may follow with the allocation of a personal share, which will be foreclosed on. If during the court hearing it is proven that the other party does not bear financial obligations, its share remains inviolable.

Note!

When dividing property, the interests of children are also taken into account, but their presence does not relieve debtors from mandatory payments.

If the personal property of one of the parties is not enough to pay off financial obligations, the balance may be recovered from the share received by the debtor when dividing the jointly acquired property. In the absence of available funds, the creditor is able to initiate the sale of the disputed property without taking into account the opinions of the parties. Drawing up an agreement in advance indicating the exact time of payment will help to avoid this. An experienced lawyer will help you prepare such a document. Without the advice of a specialist, a couple may not only lose real estate and belongings, but also retain debt obligations, supplemented by fines for late payments.

Collection may be directed at common property acquired or improved by criminal means. If during the meeting it was proven that it was in joint use, the foreclosure is applied to the entire property without allocating a share.

Summary

When dividing debts, not only obligations are taken into account, but also the subject of the dispute itself. For example, when dividing the debt for a mortgaged apartment, the share of one of the spouses may be reduced in proportion to the payments. A husband or wife may be completely exempt from payment, but in this case they will be deprived of the right to living space. In such sections, representatives of the credit institution that issued the loan are involved as a third party.

If, after division, only one party pays debts in good faith, and the other neglects its responsibilities, a claim for illegal enrichment may be filed against it.

To recover lost funds, you will need the help of an experienced lawyer; it is almost impossible for an ordinary citizen with no experience in litigation to resolve this issue.

Debts during a divorce - how they are divided and in what proportions is useful for divorcing spouses to know. It is also important to understand that the division procedure depends on the mode of ownership of property in marriage, the ownership of the debt and the basis for its occurrence. We will consider all these nuances in the article.

General information about the division of debts between spouses

Divorce involves the end of a joint union between a man and a woman, followed by the division of jointly acquired property and debts.

At the same time, the legislator in Article 38 of the RF IC specifies that debts can be divided both during and after a divorce.

However, not all debts are subject to division, but only those that are joint. Despite the fact that the legislator does not define what exactly refers to such, law enforcement practice proceeds from the fact that they include debt obligations:

• in which both spouses act as borrowers (i.e., the spouses jointly entered into a loan agreement with a bank or a loan agreement with a lender and are co-borrowers) or about which both knew (i.e., the second spouse consented to the conclusion of the transaction);
• which were executed by one of the spouses, if cash Then we went on to purchase common property (for example, an apartment).

By default, the spouse's debt, which he has incurred on himself, is his personal until the contrary is proven. This presumption was established due to the fact that during a divorce, cases of one of the spouses announcing in court a loan that was allegedly spent on acquiring common property have become quite frequent.

However, it is important to document that such a purchase actually took place and prove that the debt was received for joint needs.

How to divide debts during divorce

Depending on whether the spouses reach a consensus or not, there are two ways to divide debts:

1. Voluntarily - by drawing up an agreement and approving it by a notary.
2. In court - when spouses cannot distribute acquired property and debts voluntarily.

As a general rule, the debts of spouses are divided in half, except in cases where:

• otherwise established by the agreement concluded between them;
• one of them spent property to the detriment of the interests of the family or had no income without good reason;
• there is a need to take into account the interests of minor children.

The procedure for dividing debts is as follows:

1. An inventory of all existing debts is compiled with the remainder for the period of divorce.
2. The spouses decide in what order they will divide the debts: they will agree and draw up an agreement or go to court.
3. If we are talking about an agreement, it is certified by a notary and comes into force from that moment. If we are talking about the court, then the interested party files a claim (there may be counterclaims), after which the court makes a decision that is subject to mandatory execution by both spouses.

Spouses can not only divide debts during a divorce, but also agree on the procedure for repaying them. Here, for example, are options for dividing the debt for a mortgage:

1. One spouse buys out the other spouse's share of the property and continues to pay the mortgage.
2. The couple sells the apartment and divides the amount remaining after paying off the debt in half.
3. The spouses sign an agreement with the bank to divide the joint debt into two individual ones.

How to divide a loan or loan

The specifics of dividing the spouses’ obligations under a loan or loan depend on the terms of the agreement, the position of the credit institution, the presence of mutual consent and the purpose of using the loan.

By default, the general rule of clause 3 of Art. is applicable to debt obligations. 39 RF IC. According to this rule, the remaining debt on the loan must be distributed between the spouses in proportion to the shares awarded to each of them in the right of common property.

The loan can be divided without the participation of the creditor only during legal proceedings. To avoid trial, spouses can resort to one of the following options:

1. Contact the lender with a proposal to highlight the obligations of each spouse under the agreement (in this case, an additional agreement is concluded to the loan agreement).
2. Include in the agreement on the division of jointly acquired property a clause that one of the former spouses pays compensation to the other (who repays the loan) (a certain share of the total payment).

The possibility of demanding compensation for part of the funds allocated by the ex-spouse to repay the loan is confirmed, among other things, by the ruling of the Supreme Court of the Russian Federation dated November 20, 2018 No. 18-KG18-201.

If one spouse was the borrower under the agreement, in order to award compensation in court it is necessary to prove that the funds received were used for the general needs of the family.

This condition was outlined by the Supreme Court of the Russian Federation in Review of Judicial Practice No. 1 for 2016.

Division of debts by agreement

Family or civil law does not provide for a separate agreement on the division of debt obligations. But this fact does not prevent the inclusion of provisions on the division of debts in the agreement on the division of property of the spouses. The document is drawn up in writing and is subject to notarization.

An agreement regarding the debts of divorcing or ex-spouses can also be concluded as part of a court proceeding. In this case, before making a decision, if there are written agreements between the disputing parties, the court approves the settlement agreement.

All debts are calculated at the time of drawing up the agreement and are confirmed by documents (loan agreements, receipts, loan agreements).

Important! As the Supreme Court of the Russian Federation indicated in the already mentioned ruling No. 18-КГ18-201, it is impossible to change the terms of the original loan agreement without the consent of the lender. This rule follows primarily from paragraph 1 of Art. 450 of the Civil Code, according to which changes to the contract are possible by mutual agreement of the parties.

It follows from this that the parties do not have the right to change the terms of the loans by agreement. In particular, the parties cannot stipulate that they undertake to make monthly payments in equal shares if, according to the agreement, one of them is the payer. But it is possible to register the obligation of one of the parties to compensate a certain share of the periodic payment of the party - the payer of the loan.

Division of debts after divorce - judicial practice

Review of judicial practice of the Supreme Court of the Russian Federation No. 1 for 2016 describes the following case: one of the spouses took out 2 loans and asked to divide them as jointly acquired property in marriage in equal shares. The courts of the first and second instance came to the conclusion that this is so, but the Supreme Court of the Russian Federation presented convincing arguments about the inconsistency of such a conclusion with the law.

From the circumstances of the case, it turned out that for the first loan, in 2011, the husband was the borrower, and a third party was the guarantor. A year later, the situation looked similar, but since 2012 the spouses have not maintained a joint household. Moreover, the wife claimed that the money from the first loan was not used for joint needs and she did not consent to any of the loans mentioned (she did not even know about the last one).

The legally significant circumstance in this case was the proof that the money went for general needs, and the one who insists on dividing the debts must prove this. The husband was unable to substantiate his point of view, and the court recognized that the debts were not subject to division.

As another example from judicial practice, one can cite the decision of the Ust-Abakansky District Court of the Republic of Khakassia dated January 25, 2016 in case No. 2-55/2016. The couple divorced, after which the wife filed a claim in court for the husband to repay part of the loan taken to her before the marriage was registered for the construction of the house in which they lived. The husband did not deny the fact of the loan, but did not want to share it.

The wife invited witnesses to the court:

• the father, who stated that before the marriage the bank did not issue a loan to his daughter’s future husband and therefore, in order for the construction site to not stop, he had to take out a loan for it;
• a foreman who heard a conversation about a loan and that it was used for the construction of a common house for the spouses.

As a result, the court came to the conclusion that there was nothing to divide, since:

• firstly, the future spouse did not consent to the loan;
• secondly, when the woman took out the loan, there was no agreement between them regarding the transfer of the house into joint property in the future.

Thus, it turns out that the loan in this case was the initiative of the wife alone, and therefore is not subject to division.

So, how debts are divided when spouses divorce depends on how these debts were formalized, for what purposes the received funds or property were used, and whether the debt can be classified as jointly acquired. The parties have the right to distribute debts both voluntarily (by concluding an agreement certified by a notary) and by going to court.

Let us immediately note that only general debts are subject to division. The Family Code (hereinafter referred to as the RF IC) does not distinguish between personal and general debts. These criteria are formed by law enforcement practice.

So, to the debts of one of the spouses can be attributed:

• debt that arose before the marriage or after its termination;
• if the debt passed to the spouse by inheritance;
• if one of the spouses causes harm to the life, health or property of another person;
• alimony obligation.

And here total debt criteria:

• the debt arose at the initiative of both spouses (in particular, when the second spouse agreed in writing to conclude an agreement or acted as a co-borrower);
• using for any obligation everything received (even by one spouse) for the needs of the family;
• obligations to compensate for harm caused by common minor children.

But what are the needs of the family and how can you prove that the money is spent on them? As a rule, and by default, the court considers that all debts were spent on family needs. Prove that the loan was used specifically for the needs of the family, in the interests, first of all, of the spouse who took the loan. The second spouse, naturally, will prove the opposite. The purpose of the loan will help confirm that the money was spent on the needs of the two spouses: for example, for a joint vacation, or for renovations in an apartment, or for the addition of some property to the family after the agreement is signed. It is much more difficult to prove that a debt is personal. In fact, the spouse needs to prove that the loan was not necessary and the money was not spent on the family at all.

So, the division of common debts is discussed in paragraph 3 of Art. 39 of the RF IC: the common debts of the spouses when dividing the common property of the spouses are distributed between the spouses in proportion to the shares awarded to them.
As a rule, in practice there are disputes about the division of jointly acquired property, and debts are received as a “bonus”. But there are also claims only for the division of debt.
When dividing property, its value and the amount allocated to each of the former spouses are taken into account. For example, during the marriage, property was purchased on credit (it is jointly acquired). Upon divorce, the remaining debt under the loan agreement is divided, which is proportional to the awarded shares of this property (Appeal ruling of the Moscow Regional Court dated March 12, 2014 in case No. 33-5571/2014). Obligations (debts) of spouses may arise under any civil law agreement. The most common debts are those that arise from credit and mortgage agreements, but there can be any other agreement (for example, a loan agreement, purchase and sale agreement, etc.). After all, if property acquired under an obligation for which a debt arose comes into common ownership, such a debt can be recognized as common (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15; Appeal ruling of the Moscow City Court dated December 24, 2014 in the case No. 33-40729).
The RF IC does not directly provide for the conclusion of an agreement on the division of debts (similar to an agreement on the division of property (Clause 2, Article 38 of the RF IC) or a marriage contract (Art. 40 of the RF IC)), but it does not prohibit it either. And everything that is not prohibited is permitted. In practice, it is not so common, but such agreements do occur. They are especially relevant when a mortgage agreement has been concluded. Such an agreement may provide various options conditions. For example, admit that debts are divided equally or assigned to one of the spouses. Concluding a marriage contract will significantly facilitate a not entirely pleasant stage of your life.
It is worth noting that on the conclusion of a marriage contract by the RF IC in paragraph 1 of Art. 46 obliges you to notify your creditors (after all, debts can be redistributed in a marriage agreement). But please note that it is necessary to inform only about the fact of conclusion, amendment or termination of the marriage contract. The spouses are not required to talk about the contents of such a contract (although this should be of interest to the creditor). If this fact is not reported to the creditor, then you will have to answer for the obligations, regardless of the content of the marriage contract.
And if did the loan or debt under the obligation arise after the actual termination of the relationship? Firstly, it is necessary to prove that the relationship has been terminated, because on paper the family exists. You will only have to prove it in court. Witness testimony can also be used. If the case progresses successfully, if it is recognized that family relationships terminated, then the debt obligation is recognized as belonging to one of the spouses. Let's focus on the mortgage loan. The marriage is terminated, but no one goes to the bank; the loan is paid by one of the spouses. Can he get some of the money back? First, you need to go to court with a claim for the division of jointly acquired property (after all, the apartment was acquired during marriage, which means it is jointly acquired property). The remaining debt will be distributed in proportion to the awarded shares. In addition, it is necessary to prove that for some time the debt was paid from the personal funds of one of the spouses in order to recover from the other half of the individual payments made. Therefore, keep the documents that confirm the payment by one of the spouses (Determination of the St. Petersburg City Court dated April 24, 2012 No. 33-5439/2012; Appeal determination of the Murmansk Regional Court dated November 26, 2014 No. 33-3698).

To summarize, we can say that in order to divide debts that one of the spouses incurred during the marriage, it is necessary to prove that these debts are common. As we have already noted, the criteria for common debt are not established by law, so the spouses will need to prove in court that the debt arises from a common obligation under the contract.

Last update: 01/30/2020

After marriage, the newlyweds gradually begin to equip their “nest”. Very often, some details of the arrangement, and sometimes the entire arrangement, are purchased through loans. Statistically, every second couple goes through a divorce procedure. In this case, the question often arises: how to divide the loan when spouses divorce? In this article you can find answers to the most pressing questions.

What are the debts of spouses?

Debts of spouses (including each of them separately), earned during marriage, in the vast majority of cases are common debts and are divided among themselves upon divorce. Such debts cover almost all aspects of family and social life. Most often this concerns:

• obligations on loans and borrowings;
• debts on utility bills;
• taxes and other obligatory payments;
• compensation for losses from the operation of common property.

For example, due to the failure of the faucet in the kitchen, the neighbors were flooded. Property damage was recovered in court. Such a debt will be mutual, since the apartment in which the plumbing became unusable was the property of the spouses who negligently maintained their property.

However, there are debts that are strictly personalized:

• compensation for damage in connection with the commission of a criminal or administrative offense;
• business obligations arising from the activities of an individual entrepreneur;
• debts on transactions that are purely personal in nature.

For example, ex-wife I was treated at a dental clinic and did not pay for my treatment. The resulting debt will be her indivisible obligation.

When resolving any dispute about a debt between spouses, the basis is the principle of the purpose of the relationship from which the debt arose. It is believed that any legal relationship aimed at family interest or in which common property appears can give rise to common debts to the spouses. Otherwise the debt will be personal.

The most common debts mentioned in divorces are related to loans and credits.

Divorce from loan debts: general provisions

The procedure for divorce, division of property and debts is defined in the Family Code of the Russian Federation (hereinafter referred to as the RF IC). This code secures the equal rights of spouses to all property that was acquired (acquired) by them during the marriage, as well as to all debts incurred during this period.

At the same time, it does not matter to the legislator whether there are minor children after the divorce or not. Children do not influence the division of property in any way (except for certain cases, which we will discuss below), in which case they are only entitled to receive alimony.

Thus, as a general rule, loans when spouses divorce are divided in half, 50/50.

But this happens when the spouses do not object to such a division of property and debts. More often than not, this does not happen so smoothly. During the divorce process, the court tries to establish:

• which debts are general and which are personal;
• what share of the property, as a percentage, will each spouse receive.

How to distinguish between general credit debt and personal debt

The total debt is divided between the spouses. General debts arise in two cases:

• the loan was obtained jointly by two spouses;
• earthly money was received by one spouse, but spent for the benefit of the family.

Example: If the spouses take out a furniture set for the living room on credit, this is clearly a common obligation, but if the husband, going out to buy bread, takes out a “quick” consumer loan for a 48-inch TV and a game console, citing the need for the child’s development, then here the court will not be so clear. In this situation, a “quick” consumer loan can be divided disproportionately, or completely given to the husband for payment. It all depends on the court’s decision and the arguments of the other party.

When considering disputes, the courts resort to the position of Part 2 of Article 45 of the RF IC, which determines that the common debts of the spouses are divided equally, and if the debt, in our case a loan, was taken by one of the spouses and the court will establish that this loan was spent on needs family, then this obligation will also be divided equally.

Personal debts

Own debts between spouses cannot be divided. Personal debt occurs when a husband or wife takes out a loan for their own benefit, without taking into account family needs. It does not matter whether the second spouse knew or did not know about such a loan. The debt will remain personal, even if the second spouse is a guarantor, of course, provided that such a loan is not overdue and is not collected from the debtor and guarantor.

Secret debts

In general, personal loans are often hidden from the other spouse - these are the so-called “secret” debts. Those same spent credit funds from a bank card that need to be returned. In judicial practice, this is not a rare case when one of the spouses even Not suspects that the second spouse has a loan. But during a divorce, this fact comes to light, and the loan is repaid after the divorce.

Previously, such legal disputes were resolved inconsistently and caused difficulties in defending their interests by the spouse who was not involved in obtaining the loan. Paragraph 5 of the Review of Judicial Practice Supreme Court Russian Federation No. 1 dated April 13, 2016, everything is put in its place. Now it is understood that the loan is personally assigned to the spouse for whom it is issued and has nothing to do with general debts. And this spouse, wishing to share it with another, must actively prove that the borrowed funds were spent on the needs of the family. The second spouse does not need to make excuses; the court will initially be on his side.

This is a very complicated process, but by proving your non-involvement in spending, you will avoid possible claims from banks.

Moreover, if it turns out that the spouse repaid a personal loan from the family budget, then this can be turned to his advantage by declaring a decrease in the size of the property or an increase in the debt obligations of the other party.

Often, secret loans are used by dishonest spouses as a tool to deprive the other spouse. The scheme is as follows:

• submitted to the court fake contract loan, where the lender is close friend, an acquaintance or even a relative of the attacker;
• husband declares that specified loan was spent on the family, sometimes documents about expenses (checks, receipts, etc.) are submitted to the court. Naturally, these expenses were from the general budget, but this is skillfully presented as borrowed funds;
• in addition, a document on repayment of the loan, dated in the post-divorce period, on behalf of the dishonest spouse is presented;
• As a result, the court is asked to take such an imbalance into account when distributing joint property or general debts.

Ways to combat this are to prove the opposite, which requires:

• confirm that the disputed purchases were made using family funds;
• challenge the loan agreement in a separate lawsuit. There is one significant circumstance for this: according to Part 2 of Art. 35 of the RF IC, the consent of the second spouse is required to conclude a transaction. Without it, the transaction is considered void. Accordingly, the loan is not recognized as issued for the family, and the obligations of the parties to the fictitious loan remain their own problem without consequences for third parties.

What are the ratios of shares in total debts?

In addition to an equal division of debts, there may also be distortions in one direction or another, depending on the specific situation. The law states that the percentage of debts depends on the percentage of property received during the divorce.

For example, the court set the husband’s share in the property as a result of the division equal to 30%, and the wife – 70%, which means the same will happen with debts: the husband will have 30% of the total debts, and the wife 70%.

In some cases, courts use the disposition of Part 2 of Article 39 of the RF IC, which talks about the judge’s right to deviate from equality of shares in common property and debts during a divorce, in the interests of minor children or the second spouse, provided that the other spouse had no income without good reason or spent family savings (property) in his own interests.

Example: It’s not a rare case today when a woman earns significantly more than a man, and the man simply begins to shirk work, since there is already enough money from his wife. As a result of unfulfillment, over time a man begins to degrade, often drinks alcohol, puts his priorities above those of his family, regularly spends money from a credit card on entertainment, and so on. This situation leads to divorce. In this case, the division of property and debts may not occur in accordance with proportions, but based on the contribution made by each spouse to the acquisition of credit obligations and property.

Specific figures, or the very fact of disproportionate division of the loan, will be determined by the court after considering the arguments of the parties in each specific case.

Before we begin this chapter, let's briefly summarize the previous one:

• During the divorce process, all credit obligations are divided in half (unless otherwise established by the court).
• Whoever initiated the loan and for whom the documents were made is personally responsible for the loan obligations.
• Loan repayment may be assignedfor two spouses, provided that the interested spouse proves that the borrowed funds were used exclusively for the general needs of the family.

The division of property and debts begins even before the trial. This occurs during communication between spouses. No matter how you treat each other, a peaceful solution to a problem is always a priority over judicial intervention.

As with marriage, during the divorce process, spouses can enter into an appropriate agreement, certified by a notary, which provides for the entire process of dividing property and debts, up to the listing of each item and the amount to be repaid, or the proportions in which all property will be divided.

The difference between an agreement and a prenuptial agreement is that the agreement is concluded when the spouses are married and have not submitted an application for its dissolution to the registry office, and the agreement can be concluded within three years after the divorce (the statute of limitations for the division of property of the spouses is 3 year (part 7 of article 38 of the RF IC)).

Try to find common ground, pay attention to all existing debt obligations. Only spouses have sufficient knowledge and competence and can fairly divide them among themselves in order to distribute the debt load in such a way that a loan taken during marriage will be repaid after the divorce, without overloading the budget of each of them.

If this cannot be achieved, then the spouses’ path lies in court. In addition to the application and passport, you need to submit:

• a document containing information about the property that needs to be divided;
• about all loans and other debts expressed in monetary terms;
• It wouldn’t hurt to prepare an evidence base in defense of your interests, which should influence the judge’s final decision on the proportions of division of property and loans.

Advice! If a peaceful solution to the division of property failed and the matter went to court, you can always declare that you want to receive some thing that the other spouse is claiming by paying him part of its value or taking on credit obligations for the right of individual ownership property serving as collateral for a loan.

Banks don't like risk

When concluding a loan agreement, few people read it from cover to cover. At best, they skim over liability for late payment and the right to early repayment. However, banks always reinsure themselves in case of disagreements between spouses, which subsequently lead to divorce.

To do this, a whole series of legal actions usually takes place:

1. The bank requires the written consent of the second spouse to receive a loan;
2. The second spouse is included in the loan agreement as the second borrower;
3. The second spouse acts as the guarantor of the first one under this loan agreement.

Example: There are known judicial precedents when a higher court overturned a lower court decision on the division of consumer loan obligations between spouses, due to the fact that the bank was against such a division and used the provisions of Part 1 of Art. 391 of the Civil Code of the Russian Federation, as an argument in court.

Types of loans and ways to divide them

This chapter will discuss the main types of loans and the options that may occur when they are divided in court:

Large targeted loan (car, apartment, other real estate)

Initially, this loan will be divided in half in court during a divorce. However, there are options when one of the spouses refuses to pay. In this case, you can:

• sell the collateral and repay the loan early (the bank’s consent is required);
• assume obligations and use the property personally.

When dividing a “car” loan, it should be taken into account that one of the spouses uses the car, and the second receives a certain financial compensation, minus his share of the remaining loan payments. In this case, repayment of the loan falls on the person who operates the car.

When dividing a mortgage loan:

• pay the other spouse part of the money, minus his share of the remaining loan payments, contact the bank and remove the second spouse from among the borrowers under the mortgage agreement (with the bank’s consent).
• sell the collateral property to repay the loan (the same with the consent of the bank), see.

Cash loan

Here the situation is more complicated. If the loan money was spent on family needs and there is evidence (credit card statements or a check for an amount equal to the loan amount), then the distribution will be 50 to 50. If one of the spouses does not agree to pay the obligations, then he will need to prove that the money was spent on the personal needs of the second spouse.

Loan for personal needs

By default, such a loan will remain the loan of the person in whose name it is issued. If, in fact, the loan funds went to the needs of the family, then in order to fairly distribute the debt, you should carefully prepare for the trial. It is necessary to make all kinds of statements on the cards, with maximum decoding of the transactions performed, submit all confirming checks, search for witnesses and collect other evidence indicating the involvement of the second spouse in using the loan.

Consumer loans

A small consumer loan may also be the subject of a legal dispute. If the spouses took a kitchen table, then this is clearly a 50/50 split, and if a bass guitar with an acoustic system was purchased, then the judge is unlikely to find this purchase vital for the family. An exception would be if one of the spouses makes a living playing this guitar and needs another one at home for regular practice.

In any case, before taking out a loan, think several times about the urgent need for the property that will subsequently be purchased. Statistics show that 70% of all loans are the pursuit of new technologies, 20% are the realization of long-standing desires, and only 10% are truly necessary acquisitions.

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days.

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