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How is a loan divided in a divorce? Who will pay the debts? How is credit divided in a divorce? How is consumer credit divided during a divorce?

Divorce or termination of marriage, as the Family Code calls this procedure, is just a fixation of the fact of dissolution of family ties. But the relationship does not always end at the time of receiving the “Certificate of Divorce”. There are also common children, common property, common obligations.

And if there is at least some clarity in the minds of former spouses regarding jointly acquired property and the upbringing of children (property is divided, alimony and communication are divided into children), then in relation to debts existing at the time of divorce, there is often not even the most primitive understanding. But the division of property implies the distribution between the former spouses of not only available household items, furniture, household appliances and real estate, but also debt obligations.

Division of property and loan debts in a divorce

Who else will have to pay the bank for another twenty years, who has more rights to a car or a refrigerator bought on credit? We need to figure it out.

The most general answers to these and similar questions are given by the civil and family codes of Russia. The general principle, although not without reservations, is this: one half of all property acquired in marriage belongs to the husband, the other to the wife. The same principle applies to debt. The fact of termination of marital relations does not cancel the joint obligations of the former spouses to pay loans. They took it together, they must return it together.

Moreover, in no case should one confuse debts with those who received credit property during the division. In other words, if the credit refrigerator goes to the wife, then the husband's obligations to repay the loan received for the purchase are preserved.

Here, as they say, flies - separately, cutlets - separately. First, the court will divide all movable property available at the time of the trial: it will be valued and divided in half. For example, if the court valued all the property at one million rubles, then each of the former spouses will receive beds, sofas, refrigerators in the amount of five hundred thousand rubles. If “in kind” it is impossible to divide the property equally, then the court will simply determine who gets the car and who gets the TV with the dishwasher. The court will decide who should compensate the difference in the value of the property to whom, so that, as a result of the division, each of the parties receives half of the jointly acquired property. In real estate, shares belonging to former spouses are allocated.

Absolutely the same approach will be applied to the division of debts. The court will divide the balance of the principal debt in half, obliging each of the former spouses to fulfill their part of the loan obligations. The decision on the ownership of credit property is taken separately, and on the payment of the loan - separately.

Divorce is not a reason to change the terms of the loan agreement

Often, when applying for a loan, one of the spouses is the borrower, and the other is the guarantor. Husband and wife can be co-borrowers. One of them can be the mortgagor, and the other - the recipient of the loan. All these obligations, which both spouses voluntarily assumed at the conclusion, remain with each of them even after the dissolution of the marriage. You should not hope that the bank will replace the borrower, mortgagee or guarantor just because capable adults have changed their minds about living together. The court won't do it either.

If the loan was received by one of the spouses, and the other spouse learns about this fact only at a court session dedicated to the division of property, then in this case he risks receiving his half of the obligations to repay such a debt. In any case, it will not be easy to prove that the loan was received without the knowledge of one of the spouses, especially if the opposite party in the process insists that this was done by mutual agreement.

After the dissolution of the marriage, the one of the spouses who is the borrower under the agreement will have to make monthly payments to the account. In this case, the court will determine the amount of the debt of the second spouse: he can either pay off his half of the debt on his own, or transfer these funds to the borrower so that he himself makes the necessary payments.

What to do if the "former" does not comply with the court decision

This is ideal. But in reality, not everyone has the opportunity to implement such a decision at a time. Yes, and they take a loan precisely because there is no money in order to immediately pay a significant part of the purchase price. What should the recipient of the loan do in this case?

The borrower can apply to the court to recover from his former spouse half of the amount that was spent on repaying the loan: both in terms of paying the principal debt and in terms of paying interest.

The statute of limitations for such claims is three years, and you should not forget about this if you have to go to court to protect your violated rights. Since any lawsuit requires time and money, it makes no sense to demand a refund after each payment. But it is also not necessary to postpone the limitation period until the last day: you never know what problems can prevent you from filing it on time!

So, it is necessary to understand and remember. Credit property is included in the total property mass subject to division. Obligations for the unpaid balance of the principal are borne by both spouses even after the dissolution of the marriage. Even if the court decides that the loan property after the division will belong to one of the spouses, since it cannot be divided into parts (for example, a car), this does not cancel the obligation of the other spouse to fulfill their part of the obligations to repay the loan. If, after the division, the value of the property of one of the former spouses turns out to be greater, he will have to compensate for this difference either in money or in any other way.

Is it possible to change the share in credit obligations

The size of the share in the balance of credit obligations can be changed by the court if it is proved that one of the former spouses paid part of the loan or the down payment with their own personal money, for example, received as a gift. The court may deviate from the principle of equality of the shares of spouses in common family property (and hence in debts!), If certain other circumstances are established: the interests of minor children, the disability of one of the spouses, and so on.

So it is hardly possible to predict the results of the trial with absolute certainty: in the process of considering the case, the court will try to identify circumstances that could seriously violate the expectations of the parties. And any argument in court will have to be not only expressed, but also proved: documentary and witness testimony. Therefore, if the divorce itself is inevitable, you must first try to agree on options for resolving all controversial and complex issues. Indeed, in court, a case can be considered for months, or even years, turning into a sluggish and exhausting process. And not everyone is ready for it.

Family life can be complex and unpredictable. In marriage, people can not only accumulate common property, but also debts. What to do when the relationship has cracked and divorce is inevitable? How to divide existing liabilities? Today I will tell you how the common loans of the spouses are divided among themselves during the divorce process.

The division of credit obligations is carried out, usually simultaneously with the division of property. This will help prevent delays or extra payments.

If the loan was taken when the spouses had already parted, then it will be necessary to provide solid evidence at the court session confirming the fact of the separation of the spouses.

Then the Judicial authorities can assign a payment on the loan only to the borrower. The legislation establishes a statute of limitations, during which you can apply to the judicial authorities for the division of jointly acquired property and loans. This period is three years.

Division of debts by common agreement of the spouses

The most civilized method is the division of debts by mutual agreement of the spouses.

This can be achieved using one of the suggested methods:

  • draw up a pre-trial peace agreement. In such a document, the shares of each of the spouses in the existing loan obligations should be clearly stated. The document also indicates information about the property shares due to each of the spouses. Such an agreement can be drawn up at any stage of the divorce process;
  • marriage contract. You can draw up such a document at any stage of the marriage until the moment of its dissolution. The document can prescribe both current and future property and loan obligations between the spouses.

The agreement does not require mandatory notarization. I will clarify that if there is a risk of its cancellation by one of the spouses, then in order to prevent this, it is better to visit a notary to certify the document.

The marriage contract must be notarized without fail. You need to be prepared to incur additional costs for paying notary services.

If an agreement could not be reached

In cases where the spouses cannot agree among themselves on the size of the shares on credit obligations, they need to go to court to resolve the dispute.
It is necessary to prove in court whether a loan was taken for the general needs of the family or to meet the needs of one of the spouses. If earlier loan obligations taken in marriage were divided between spouses in equal parts without exception, then after the publication of a review of practice in 2016 by the Supreme Court of the Russian Federation, the situation has changed radically. To date, loans taken for the needs of the family are common. The spouse who wants to share the debt obligations equally will have to prove the existence of family needs. After examining all the circumstances of the case, the judge will decide on the division of obligations between the spouses.
It is possible and not to share obligations among themselves. During the court session, the spouse has the right to refuse his credit obligations by reducing his property share due to him during the division of jointly acquired values.

Bank participation during debt obligations

The participation of the bank during the divorce proceedings of the spouses is mandatory, because they are interested in the successful resolution of the dispute between the former spouses.
If the employees of the financial organization did not take part in the court session and do not agree with the decision, then Tony has the right to challenge it.
In addition to transferring credit obligations to one spouse, the bank can offer alternative methods for solving the problem.

Most often, a financial institution offers to issue a new loan for one of the former spouses to pay off the previous debt. The second spouse, therefore, can count on receiving compensation for the funds paid earlier.

If the loan obligations were divided equally between the spouses, then the bank does not have the right to change the terms of the current agreement. A financial organization cannot put forward its own requirements that are contrary to the interests of the participants in the divorce proceedings.

If the loan funds were spent on general family needs

According to the current legislation, a loan taken for the needs of a family is considered:

  • purchase of land;
  • buying a property;
  • purchase of a vehicle;
  • buying things necessary for the daily needs of the family.

Such property is considered jointly acquired and is subject to division in equal proportions between the spouses. Accordingly, the debt obligations arising as a result of its acquisition are subject to division between the spouses equally.
In order to prove the reason for the occurrence of debt obligations in a court hearing, it is necessary to provide the following papers:

  • loan agreement;
  • a contract for the sale of property;
  • other right establishing papers.

The more evidence the parties provide, the faster the classification of the debt can be determined, which will help establish a new payment amount for each of the former spouses.

The tips below will help you find the best solution for dividing existing debt.
First of all, you need to try to reach a peace agreement. If this fails, then you should contact the judicial authorities to resolve the situation.
Claims must contain as much specific information as possible. The more data provided, the easier it will be for the judge to understand the situation. The claim must contain information about the purpose of the loan.
It is necessary to prepare documents confirming the purpose of obtaining a loan and stock up on testimonies.
If necessary, you need to use the services of lawyers specializing in litigation.

Be sure to notify the financial institution that provided the loan about the start of the divorce proceedings.

In conclusion, I will say that the division of joint debts requires no less responsible approach than joint property. In case of disputes, it is necessary to apply to the court to resolve the disagreements that have arisen. The best solution in this situation would be the support of a competent specialist in family disputes.

About the division of spouses' loans in case of divorce in the video:

The divorce process on average lasts 1-3 months. To this period, another 1 month should be added, which is allotted for the court decision to enter into force if the divorce occurs through the court. At the same time, consideration of property disputes relating to the division of matrimonial property, including their debts on loans, lasts much longer. How are loans divided in a divorce? This issue worries many spouses who want to dissolve the marriage, since this procedure is further complicated by the fact that there is a third interested party in it - the bank that issued the loan.

Husband and wife not only acquire joint property in marriage, but also receive loans, which, according to family law, are also the common responsibilities of husband and wife. In accordance with 34 Art. RF IC, all joint property acquired during family life is considered common property. Thus, in the division of property upon divorce, the total debts of the spouses must be distributed between them in proportion to their shares.

As a rule, the courts consider disputes about the division of property and debts, make decisions based on paragraph 2, 45 of Art. SC. The court collects matrimonial property for the general obligations of the parties and for the obligations of one of the spouses, if it is established that the received loan funds were used for family needs.

Debt sharing rules

To recognize the loan as joint, you will have to prove that the borrowed funds were spent on family needs.

But how can one accurately determine that the car purchased on credit was needed by the whole family, and not just one spouse, or an expensive fur coat was bought in the interests of both spouses, and not just one wife? To answer this question, you should find out what rules for the section of loans are.

Any loan can be divided either in court or by mutual decision of the parties. Family law provides for the possibility of drawing up an agreement on the division of joint property between a husband and wife. Such an agreement can be concluded as a separate agreement or in the form of a marriage contract.

Both documents have the same purpose. They differ only in that they have a different order of registration. For example, an agreement on the division of loans does not have to be certified by a notary, and a marriage contract is subject to mandatory certification in a notary's office.

In an ordinary agreement, the spouses can specify any conditions. For example, the fact that property or credit obligations will be divided in half during a divorce. Also in the contract, you can determine the shares that each spouse will receive during the division.

The agreement can be concluded both in marriage and after its termination. A marriage contract is concluded before the official marriage or during it.

If the spouse takes on credit obligations for personal needs, then the borrower to whom this loan is issued will repay the debt during a divorce.

Lenders' point of view

For a bank acting as a creditor, the borrower's divorce from his spouse will be very unpleasant, since this procedure is associated with the division of property and debts. Russian law obliges both spouses to repay the loan obligations taken on the family. At the same time, in connection with divorces, the number of debtors is growing, and with it the number of bad loans. Therefore, the bank in this situation will have to spend a lot of time to recover their losses. As a result, when drawing up a loan agreement, the bank is guided by the rule: whoever took the loan must pay it back. The fact that the debtor can transfer his debt to another person only with the permission of the creditor is stipulated by law.

Thus, if a banking organization does not agree to transfer the credit obligation to the second spouse, it will be simply impossible to force him to do this.

According to the generally accepted rules of law, all property acquired during marriage is recognized as the joint property of the spouses. This provision also applies to debt obligations. However, not everything is so clear cut. In the article, we will consider situations in which the loan received by the husband is a common debt and is payable by both parties, and in which it is recognized as the personal debt burden of the spouse and is not subject to division.

Husband's divorce loans

  • It is not uncommon when couples break up, it turns out that the parties have outstanding debts. For example, a standard situation: a divorce, the husband took out a loan, but did not have time to pay it off, being in a registered marriage. If no action is taken in this regard, then the spouse continues, as before, independently to bear the burden of responsibility for the payment of the specified loan, unless otherwise provided by agreement of the parties. After all, according to the loan agreement, the borrower is the husband, and as a general rule, there are no changes in the loan agreement, unless this is preceded by the mutual consent of the parties or a court decision.
  • In other words, the loan itself is not automatically divided upon divorce, if this provision is not agreed with the credit institution and there is no judicial act in this regard. Spouses, together with the requirement for the division of property or as an independent statement, often resolve the issue of debts in court.

According to part 3 of Article 39 of the Family Code, the total debts of the spouses in the division of the common property of the spouses are distributed among the spouses equally - in accordance with the shares awarded to them.

  • Thus, for starters, it is required to recognize the debt as “general”, regardless of which of the spouses the loan agreement was drawn up for. Judicial practice shows that if a loan is issued personally to a husband or wife separately and the intended purpose of the borrowed funds is directed to general family needs, then the court recognizes. And subsequently, on the basis of a court decision, changes are made to the loan agreement and the rest of the debt is paid by both parties.

  • For example, being married, the husband took out a loan for new equipment in the house, or for a joint trip to the sea. As a result, the marriage breaks up until the loan is completely closed, the obligations assumed are repaid. And the husband in this case, quite reasonably, in court has the right to demand the division of the jointly acquired debt.
  • But the reverse situation also happens. When a spouse enters into a debt relationship with a credit institution against the will of the spouse, without her knowledge or borrowed funds are spent on needs completely unrelated to the family. For example: for the leisure of her husband, for new jewelry, personal items, and so on. In this context, one cannot say that the debt to the creditor is "general". Of course, in court you will have to substantiate any argument in your favor, present evidence, the range of which is not clearly defined by law.

Loan after divorce

  • If during the divorce proceedings, the question of the fate of the debts did not arise before the spouses, the situation can be resolved after the divorce. At the same time, it is worth remembering that it is allowed to declare a requirement for separation no later than 3 years after the official divorce. If the specified time period is missed, then the court will simply refuse to accept the application for the party due to the expiration of the limitation period established by part 7 of article 38 of the Family Code of the Russian Federation.
  • Another important point is that the loan must be signed during the period of registered marriage. If the debt obligations were formalized in marriage, but in fact the parties no longer lived together, did not conduct a joint household, then the court has the right to refuse to satisfy the requirements for recognizing the debt as common.
  • Naturally, banks and other credit organizations do not welcome such a practice, when the already executed obligations of the borrower have to be shared with the other party. Since in this case, another citizen who was ordered to pay the debt is not always creditworthy. Often, he does not fall under the general requirements of the bank for borrowers. Therefore, many credit obligations remain unfulfilled.
  • Currently, if a citizen is married and takes on a fairly substantial amount of debt, such as a mortgage, banks try to include the other spouse as a co-borrower or guarantor. Thus, to protect yourself even at the stage of processing the application for the product. In addition to the client himself, the bank also checks his spouse for the level of income and the presence of so-called credit histories.
  • In order to protect yourself from possible troubles during a divorce, many lawyers advise initially to conclude, in which, in addition to property relations, reflect the provision regarding the debt obligations of the spouses. Or require the bank in the loan agreement itself to prescribe a clause regarding the procedure for repaying debt in the event of a divorce.

In general, in order to divide the debts registered by one of the spouses in court, it is necessary to prove the fact that the borrowed funds were taken for the needs of the family. And only after establishing all the important points, the court decides to recognize the debt obligations to the credit institution as a total debt and determines its amount for each party. Or it refuses to satisfy the stated requirements due to the failure to prove the target orientation of the loan for joint needs, or for other reasons, recognizes the debt as not subject to division.