Divorce loan section. Dissolution of marriage, division of property and loan obligations of spouses

1. A loan agreement, an apartment sale and purchase agreement was concluded by one of the spouses before marriage, but the loan was paid in marriage at the expense of the spouses' common funds.
2. The loan was issued to one of the spouses before the marriage, but the apartment was purchased in marriage, the loan obligation was fulfilled by the spouses already during their life together.
3. More examples from judicial practice of resolving disputes, the subject of which was a dwelling acquired in marriage.
4. Is it possible in a judicial proceeding to "divide" between the spouses the loan debt under the loan agreement? Examples from the practice of dispute resolution by courts.
5. The payment of the debt on credit obligations to the bank by one of the spouses after the dissolution of the marriage is the basis for satisfying the demand of this spouse to share the debt in proportion to the shares awarded to each of the spouses (collection from the second spouse of the funds corresponding to his share). Examples from the practice of dispute resolution by courts.

As you know, in the event of a divorce, not only jointly acquired property, but also common debts are subject to division between the spouses.

As a rule, both spouses (or one of the spouses - the guarantor) become parties to the loan agreement (we mean the mortgage loan). If one of the spouses does not want to become a borrower, the bank may offer to conclude a marriage contract with the spouses, which states that only one of the spouses becomes the owner of the property being purchased. If the spouses have settled the relationship by a marriage contract, then in the event of divorce and division of the property acquired on credit, they will be guided by the terms of this contract, which indicates who pays the loan and how much, who becomes the owner of the acquired property. In case of divorce, disputes between spouses often arise in the absence of a marriage contract. Considering that the spouses become "former" and have no desire to live in the same apartment, the question arises "who will get the apartment?" Due to the fact that the loan for the apartment has not yet been paid, "former spouses" often go to court with the demand "to divide both the apartment and the loan debts to the bank equally." Indeed, according to article 39 of the Family Code of the Russian Federation, 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. Or, for example, one of the "spouses" asks the court to recognize the ownership of the entire apartment, indicating that he paid off the loan, including after the dissolution of the marriage, he exclusively at his own expense, "or the ownership of the apartment was registered before the conclusion marriage (although the installments on the loan were paid in marriage) ... These situations find different solutions, both in theory and in judicial practice.

A loan agreement, an apartment sale and purchase agreement was concluded by one of the spouses before marriage, but the loan was paid in marriage at the expense of the spouses' common funds

There are two opinions on this issue.

First. As you know, property belonging to one of the spouses before marriage is not subject to division and is the property of that spouse. We also recall that the ownership of real estate, as a general rule, arises from the moment of registration of the right with the registering authority. Consequently, if one of the spouses formally became the owner of the apartment before marriage, he is its owner and the apartment is not subject to division. However, the “investments” of the second spouse in this case, if the loan contributions were made at the expense of the spouses' common funds, of course, will be taken into account by the court. For example, if there is other property subject to division, then it can be transferred against the spouse's share (the shares are assumed to be equal) in the loan contributions, if there is no such property or not enough, the court may recover from the owner spouse the corresponding part paid by the other spouse in marriage (in repayment of the loan) cash.

Second opinion... The fact remains unchanged that the apartment purchased by one of the spouses before the marriage is (in spite of debts and outstanding loans) the property of only this spouse .. However, in the event that during the marriage a significant amount ( most) part of the loan is assumed, then the spouse who is not the owner can claim the recognition of the joint ownership of the apartment. In this case, with some stretch it is possible to apply, according to which, the property of each of the spouses can be recognized as their joint property if it is established that during the marriage, investments were made at the expense of the common property of the spouses or the property of each of the spouses or the labor of one of the spouses. significantly increasing the value of this property (major repairs, reconstruction, re-equipment, and others).

It should also be borne in mind the norm on the basis of which the court, when considering the case, has the right to deviate from the beginning of the equality of the shares of the spouses. According to h.ch. 1, 2 of Article 39 of the RF IC, when dividing the common property of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The court has the right to derogate from the beginning of the equality of shares spouses in their common property proceeding from the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular, in cases where the other spouse did not receive income for unreasonable reasons or spent the common property of the spouses to the detriment of the interests of the family.

The position according to which, “if a significant part of the loan payments were made by the spouses in marriage at the expense of their common funds, then the apartment should be recognized as the joint property of the spouses” is, in our opinion, justified and is reflected in judicial practice.

So, for example, the Moscow Regional Court, in its ruling of May 24, 2006 in case No. 33-6012, indicated:

Therefore, the court should have established which part of the loan received by the defendant for the purchase of an apartment was repaid before marriage, and which part in marriage at the expense of common property and, depending on this, determine the parties' shares in the ownership of the apartment. "

The loan was issued to one of the spouses before the marriage, but the apartment was purchased in marriage, the loan obligation was fulfilled by the spouses already during the period of marriage

In this case, firstly, the right to a dwelling was registered already during the marriage, which means that it is assumed that it is the joint property of the spouses. Secondly, although the loan was received by one of the spouses before marriage, the loan installments were paid by both spouses in the marriage. In this case, the apartment must be recognized as the common property of the spouses.

An example from judicial practice

"... S.Yu.G. Filed a lawsuit against S.V.V. stating that during marriage with the defendant, they acquired an apartment in common joint ownership, which was registered in the name of her husband. Due to the fact that an agreement on the division of the apartment between them has not been reached, S.Yu.G. asked the court to make a division of the above apartment, determining its share in the amount of 1/2 part.

In the counter statement of claim C.The. indicated that the disputed apartment was acquired, although during the marriage period, but on his personal funds... RUB 200,000 were received by him under a loan agreement before marriage, and 100 000 rubles were presented to him by his father C.The.

Recognizing for S.The. personal ownership of the apartment, the court concluded that on the day of purchase and sale of the apartment, the parties were married for 17 days and therefore, during this period of time, they did not have the joint funds necessary to purchase an apartment.

However, this conclusion of the court cannot be recognized as correct.

In accordance with the explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 05.11.1998 N 15 "On the application of legislation by courts when considering cases of divorce", to the joint joint property of spouses, subject to section (paragraphs 1 and 2 of Art. 34 of the RF IC), any movable and immovable property acquired by them during the marriage, which, by virtue of Art. Art. 128, clauses 1 and 2 of Art. 213 of the Civil Code of the Russian Federation can be an object of property rights of citizens, regardless of the name of which of the spouses it was acquired or funds were deposited, unless a different regime of this property is established by the marriage contract between them.

The division of the spouses' common property is carried out according to the rules established by Art. Art. 38, 39 of the RF IC and Art. 254 of the Civil Code of the Russian Federation. The value of the property to be divided is determined at the time of the consideration of the case.

After a divorce, the question of the division of jointly acquired property almost always arises. But the former spouses do not like to remember about the division of debt and loans. Let's figure out how to act in this situation.

The law says that in the event of a divorce, property and debts must be divided equally between the former spouses.

When deciding on the division of the loan, the court will study who, when and for what needs took out the loan. If one of the spouses took him to meet his needs, the court may oblige him to pay the entire amount on his own. Loans will be shared only when the money is spent on things, items or property in the interests of the family. This could be buying an apartment, home appliances, or a family car.

It should be remembered that banks themselves do not really like it when the debt is divided among several people. This is not very convenient for the bank, since now it needs to control more people. Also, this section of debt causes a large number of unpaid loans.

Recently, banks have begun to provide additional insurance. If a person who wants to take out a loan is married, the bank offers him several options to choose from:

• the second spouse must become a joint loan borrower;
• the second spouse must be a surety;
• you need the written consent of the second spouse to receive a loan.

When dividing property, you can draw up a special agreement. In it, you can specify any conditions that you agree on. For example, if the husband took out a loan to buy a car, it can be indicated in the agreement that the car remains with him and he will also pay the entire loan.

Also, during marriage or in advance, you can draw up a prenuptial agreement. In this agreement, you can specify all the conditions for the section of loans and debts.

It should also be remembered that when dividing loans, the court will take into account who the minor children are with. For example, a mother with a baby may have a small percentage for payments.

In 2018, in order to divide the debts, you need to file a statement of claim with the magistrate's court if the amount is less than 50,000 rubles. If more - go to the district court. Attach a copy of the marriage registration certificate to the statement of claim; documents confirming the debt; a copy of the passport and a receipt for payment of the state duty.

When the loans are divided in court, the debt on the credit card in most cases falls entirely on the person to whom the card belonged. It is believed that only one person can have access to it, therefore he could make purchases on his own, without notifying the second spouse.

The same can be true for vacation loans. If a certain amount was taken from the bank, a voucher was bought with this money, on which only one spouse was resting, then the obligation to pay the debt can be completely assigned to him.

In any case, such disputes will be resolved in court. Each of the parties will be forced to prove their case.

Summing up the article

If you are about to get a divorce, be very careful about the issue of dividing loans and other debts. Below we have listed a short plan of action for you.

1. Try to negotiate peacefully. Offer to draw up an agreement on the division of property and debts. Notarize it.
2. If you have not agreed amicably, contact a lawyer. File a section statement.
3. Collect all proof of the loan, certificates, contracts, receipts for expenses, testimony. List all of this in your statement of claim.
4. Work out your position in court, what you will say, what you will insist on, discuss it with a lawyer or attorney.
5. Notify the bank about your divorce and the upcoming trial.

Questions and answers

Olga
I was married to a man for 4 years. At this time, we took out a loan for the purchase of a car in the amount of 600 thousand rubles. The loan was issued to her husband. We divorced a month ago, I thought that my husband would pay the rest of the amount, about 250 thousand left to pay. And the husband says that we must pay off the balance of the debt equally. Can you explain to me?

Answer
According to the law, debts between ex-spouses that were received in marriage are divided in the same way as common property, that is, equally. It turns out that you will have to pay off the remaining half of the loan, 125 thousand rubles. You will need to pay under the terms of the loan agreement. Also, be sure to notify the bank that you have dissolved the marriage. Remember, if you do not want to voluntarily pay your part of the debt, the bank can go to court to recover this amount from you by court order.

Tatiana
My husband took out a loan before our marriage. Now he pays nothing at all, the bank calls regularly, threatens us with a court. I want to divorce, but my husband does not want to give his consent. Tell me what should I do? Maybe I need to pay a debt?

Answer
If your husband took out a loan before marriage, you are not responsible for this in any way. He will have to pay the entire amount on his own, there can be no claims against you. You can dissolve your marriage through a court.

Sergey
We have not lived together with my wife for 3 in fact. She moved from me to another man, they now have a new family. During our marriage, we took out an apartment mortgage and a car loan. When my wife left me, she said that she didn’t need this apartment or the car. Her new man has everything. I want to get a divorce on a normal basis and resolve this issue. For all three years, the wife did not pay a penny, neither on the mortgage, nor on the loan. What can you do in such a situation?

Answer
In your situation, you will need to go to the district court for divorce. The court will also decide on the division of all property and debts. Most likely, you will be asked to pay off the car loan and mortgage equally with your spouse. The property will also belong to both of you. You may be able to negotiate other terms as well. Let's say that the apartment remains with you, and you will also pay the mortgage in full. In any case, before going to court, decide how you want to divide debts and property.

Helena
In marriage, a loan was taken for household appliances. After the divorce, she remained with her husband and he uses her. But he doesn't pay for the loan at all, I pay for everything myself. How to make my husband pay?

Answer
Go to court for the division of common property and debts. The court will oblige the husband to pay off half of the loan.

Svetlana
We have been living with my husband for 2 years. Yesterday I found out that he took out a large loan from the bank and did not tell me about it! Is it possible to draw up some kind of agreement or prenuptial agreement now so that I do not pay anything in the event of a divorce?

Answer
If the husband agrees to draw up a prenuptial agreement, it will be possible to specify the conditions for repayment of the loan in it. You will then need to certify such an agreement with a notary.

Tatiana
My husband and I divorced a few years ago, before that they had been married for almost 10 years. During the marriage, the husband took out a car loan. When we got divorced, I asked him several times whether he had paid off the debt. He said that yes, he paid everything. He died six months ago. And for four months now, they have called me from the bank and said that I have to pay off the debt, because we were married. It turned out that my husband still owed about 100 thousand rubles after our divorce. Tell me should I pay?

Answer
In general, as a general rule, after a divorce, the common property of the spouses and their debts are divided in half. Therefore, if viewed from this position, then yes, you have to pay half of the debt. But there is also an inheritance rule. In this case, the debts are transferred only when you entered into the inheritance of the deceased. In your case, you need to carefully study all the documents that you have. Only then will it be possible to give an exact answer.

Anna
We have been living together with my husband for eight months. During this time, a daughter was born. I want to file for divorce now. My husband told me that if I file for divorce, then we will pay off his loan for two million rubles in half. He took him in marriage, I did not even know about it. Now I do not work anywhere, I am sitting with a child. Tell me, is it true that I will have to pay?

Answer
Yes, you and your husband will pay off the debt in equal parts. In your situation, the court may soften the conditions a little, since you have a small child and you do not work anywhere. Also, after a divorce, you can file for child support for yourself and the child.

Anna
My husband took loans before marriage, since there were several payments, being married decided to take another loan and pay off his extramarital debts, this loan was issued to me. Am I obliged to pay off half of the loan after the divorce, or by going to court can I prove that the loan was taken to pay off his debts? Tell me what to do?

Answer
Since the loan was taken in marriage, the spouses must pay it off in equal shares. In addition, the loan was issued in your name. But you can try to challenge this in court, provide all the evidence about the reasons for the second loan. This is the only thing a good credit attorney should do.

Anna
She divorced her husband in 2011, the marriage was a joint loan issued to me. After the divorce, she paid it alone, can I now collect half the cost of the loan from my ex-spouse?

Answer
It is difficult to give a definite answer here, you need to study your documents. If the spouse knew about this loan and the money was spent on family needs, then there is a good chance of getting half of it back. You also need to look to see if the statute of limitations has expired. It is 3 years old. There is a Resolution of the Plenum of the Supreme Court of the Russian Federation of 05.11.1998 N 15 "On the application of legislation by courts when considering cases of divorce." It says that the three-year limitation period for claims for the division of property, which is the common joint property of the spouses whose marriage has been dissolved (clause 7 of article 38 of the RF IC), should not be calculated from the time of the termination of the marriage (the day of state registration of the dissolution of marriage in the book registration of acts of civil status in the event of divorce in the civil registration authorities, and in the event of divorce in court - the day the decision entered into legal force), and from the day when the person learned or should have learned about the violation of his right.

Julia
During the marriage, 2 credit cards were issued for the amount of 300,000 rubles.
The cards are in my name, but he also used them. We parted and now he refuses to pay. What should I do?

Answer
You need to go to court. There you will need to prove that you used the money from the cards together and the husband knew about them. In this case, the debts will be split in half.

Yuri
Can a husband, after a divorce, take his son to court, since his wife does not officially work.

Answer
This decision can only be made by the court. Hire a good lawyer to represent you. Most likely, the child will be left with the mother, and the husband will be obliged to pay alimony.

Svetlana
After the divorce, are the expenses of the already paid mortgage loan divided when the property is divided?

Answer
In most cases, they do not share, but it all depends on the specific situation. Sometimes they demand to allocate a share in an apartment in a statement of claim. You need to study the documents
which you have and already based on them decide what to do next.

Olga
The loan was taken for the husband to buy a car, the car was registered for him. Will the loan be split in half upon divorce?

Answer
Need to know if a loan was taken before marriage or in marriage? If after marriage, then it will be divided in court. But this is a general rule, perhaps the husband's lawyers will insist that he paid everything on his own. Divorce cases are very complicated and there are many subtleties.

Victoria
The apartment is taken out on a mortgage in marriage, maternity capital is used. The apartment has not been built yet, we have a divorce and what to do. I won't pay for the apartment.

Answer
Maternity capital is paid to the mother. If you contributed it for a part of the apartment, then you can apply for a part of the apartment, in proportion to this amount. There are many scenarios, whether the spouse wants to rewrite the loan for himself and leave the apartment.

Andrey
If I take a loan in marriage, and in a month we divorce my wife, then I hope my wife will not have to pay it back? I will pay myself. And when she comes to the bank after the divorce, will this loan not hang from her?

Answer
It depends on what requirements the bank will present. If the consent of the spouse is needed, then half of the debt will have to be paid to her. Especially if the money is spent on family needs.

Oksana
2 years ago I got a credit card in my name. Now we are divorcing my husband and he refuses to pay the loan. I have a 6-month-old baby and I am sitting at home with him. What to do? Will I pay off the credit on the card?

Answer
Did the husband know about the loan? Where did you spend the money from the card, are there receipts or an extract from the Internet bank, if required in court? It's one thing if you bought yourself a fur coat and didn't say anything to your husband. And it is quite different if the money was spent on a child.

Ivan
A divorce from his wife is coming, there are no joint children. In marriage, 2 loans were taken, 280,000 each for me (my husband), they were not targeted. Is it possible to split loans after divorce? Does it make sense now to repay my (husband) loans in full?

Answer
In any case, you will have to repay the loan, otherwise the bank will issue fines. For a divorce, go to court and state the requirements for the division of debts and property there. And then everything will depend on
how will you prove your case. I advise you to hire a good lawyer or try to negotiate with your spouse.

Nina
I'm filing for divorce and my husband is taking out a loan for a car. Will I pay off this loan if he gets fired from his job and becomes insolvent?

Answer
Contact the bank where he takes a loan, write a statement stating that you are categorically against and do not give your consent. Also send a certified letter to them. In court, insist that you were against the loan, you do not apply for the car. In this case, the judge must oblige the husband to pay the full amount.

Sergey
Before marriage, my wife had a loan. When we got married, we took out another loan and paid off the remaining amount from the wife's loan and made major repairs in her apartment. Now I want to divorce, I left everything that was acquired in marriage to my wife. The wife says that she will not pay anything. How will the loan be divided? And will the court take into account that the entire amount was spent in the interests of the wife? And all the property remained with her.

Answer
Yes, the court can take these circumstances into account when dividing debts and loans. But what kind of decision the court will make, I cannot tell you. Everything will depend on the claims and evidence of both parties. I advise you to contact a divorce lawyer, he will study the documents and tell you how to proceed in court.

Zlata
My husband took out a loan, he didn't tell me anything about it. I wasted the money, we have no property, we didn’t buy anything. They did not go on vacation, he did not spend this money on his family. He is ready to sign any document stating that he spent this money himself. How can we draw up a document so that there are no claims from the bank against me. Does this document need to be certified by a notary? Now he does not pay loans. I'm going to divorce him.

Answer
First, contact the bank and explain the situation to them. Find out what they have to offer you. During a divorce, it will also be necessary to explain who took the loan and for what purpose. This is so that you are not forced to pay half. If the husband fully admits that he spent the money on his own needs without your knowledge, then the court will most likely oblige him to pay the full amount.

Olga
My husband gave me an apartment, and a year later we divorced. Now he has a debt of 1,500,000 rubles to the bank. Can the bailiffs claim this apartment? This is my second home

Answer
More information is needed to give an accurate answer. Did your husband buy this apartment when your marriage was already registered? How did you formalize the gift - through a gift agreement or made up a marriage contract? If the apartment was bought in marriage and a regular donation agreement was drawn up, then in the event of a divorce and division of property, the court will most likely recognize the apartment as common property. In this case, even with a donation agreement, the apartment will be divided in half between the spouses. You also need to know when the loan was taken from the bank. If during marriage, then the loan debt will also be divided between the spouses. If each of you still has housing, in such a situation, the bank, through bailiffs, can really try to return the debt through the sale of an apartment. In this situation, you definitely need to meet with a lawyer live in order to study all your documents and decide what to do next.

Irina
My husband and I divorced and divided our property. 2 months after the division of the property (there is a court decision), it turned out that the property that was transferred to me by the court's decision was seized by the bailiffs under the spouse's loan agreement (the loan agreement was drawn up by the spouse during the marriage). How can my spouse and I share credit debts so that the bailiffs remove the arrest from my property?

Answer
You need to go to court for the division of debts and loans, if you did not do this when the property was divided.

Anna
I already understood from the article that the loan is divided in half. I want to divorce my husband, he scares me with his debts. How many of them and in which banks are taken, I have no idea. According to her husband, 2 million. I just know that he bought real estate and registered it for his mother. Together we have not gained anything. I can’t believe I’m going to pay a million just because I was stupid to get married. Can I now also run to the bank and take 2 million to balance our debts after the divorce?

Answer
If you did not know about the husband's debts and they were spent completely on his needs, then the court will most likely force the husband to pay the debt in full.

Helena
I am going to fall for a divorce, since we have not lived with my husband for a long time, now I find out that there are huge loans of up to 3 million rubles. When I took it, we no longer lived with him. How not to get hurt? There are two minor children, alimony pays, but we do not reach the living wage. There is an apartment bought by my husband before marriage, we are now living in it, registered.

Answer
Write a statement to the bank that you did not give consent to a loan, did not know about it, where the money was spent, you do not know either. Send another letter to the bank just in case. In court, insist that the husband spent all the money on his own personal needs. In this case, there is a chance that you will be exempted from payment. But you need to study your documents to give an accurate answer. The apartment will be left to the husband when the property is divided, since it was acquired before marriage.

Lily
If the spouses filed for divorce, but one of them took out a loan at that moment, when there is still no court decision. How will this debt be shared after the divorce?

Answer
It may be different, but most likely the whole debt will be obliged to pay by the one who took the money. The main thing in the court is to assert that the money was not spent on family needs. It is also worth saying that they did not know anything about the loan, the bank did not ask your consent. You can write a claim to the bank and leave a review.

Natalia
Please tell me if the debt on the loan was transferred to the collectors, what can they do if no one lives under the registration. And in general, how can they deal with non-payers.

Answer
According to the law, they must go to court and then to bailiffs. If illegal methods are used against you, you should contact the police, prosecutor's office and court.

Natalia
I want to divorce my husband, he has a bank loan, which he took without my knowledge and also spent without my knowledge, what is unknown? As a result, after a divorce, can I be called to pay? We have a minor child who will stay with me

Answer
Hire a property dispute lawyer, he will review the documents and decide what to do next. In court, also say that you did not know anything about this money. If the husband wants to oblige you to pay half of the debt, he must prove that he spent the money on the family. For example, an agreement with a company for the renovation of an apartment or a certificate for the treatment of a child. If he does not have such evidence, then there is a high probability that the entire debt will be left on him.

Inna
Two years have passed since my divorce from my husband, he has now filed a lawsuit against me for the division of the general debt, what should I do?

Answer
Make counterclaims in writing. Argument your position in court, say
that they did not know anything about loans.

Helena
In marriage, a loan was taken, they formalized it for their ex-husband, they bought a land plot with this money, and they registered it for me. We decided that the land was his and the loan too. And I receive some compensation. I do not participate in the payment of the loan, I have been divorced for 8 months.
1. In this situation, is it better for us to make an amicable agreement? If so, how to correctly write about the debt in it, so that the bank does not collect anything from me (there are fears that the ex-husband will not be able to pay the loan).
2. How to correctly calculate the amount of compensation that I will have to pay for my share of the site.

Answer
If you apply for land, then the debt for it must also be paid. But in a settlement agreement you can decide for yourself who will pay what. It is better, of course, to go to court and conclude an agreement there so that it has legal force. You can contact our lawyers, they will analyze the documents and suggest solutions to your problem.

Oksana
Before marriage, a loan was taken for my passport together with my future husband, the money was spent on general needs, now we are going to get divorced and my husband refuses to pay the loan in half, what should I do?

Answer
It is difficult to do something, since there was a loan in your name. He was taken, as you write, before marriage, so the husband has nothing to do with him from the point of view of the law. You will have to pay everything yourself.

Tatiana
The bank refuses to share the loan, arguing that it was taken under the Young Family program to buy a house. My husband and I are divorced. According to an amicable agreement in court, my husband agreed to pay in half, but in fact he does not pay, I am the only one who pays. What to do?

Answer
You need to study your decision. Who was left with the house in the end, whether the property was divided in half or not. After the trial, did you apply to the bank with a decision and a writ of execution? Have you turned to bailiffs?
They have to withhold part of the husband's salary to pay off the debt.

Hope
My husband's parents issued a loan for him, which I did not even know about. I found out when the guarantor's wife called me after they stopped paying it. Tell me how this might affect me. If I someday enter into the inheritance of my parents, can the bank claim this inheritance? How to insure yourself, maybe you should get a divorce?

Answer
In case of legal proceedings, indicate that you did not know about the loan and that it was not spent on family needs. Explain that the bank did not notify you or ask for your consent. The inheritance is not common property, so the husband will not be able to claim it.

The financial capabilities of spouses do not always allow the acquisition of a sufficient amount of material wealth: we are talking about everything - from household appliances to vehicles and real estate. In addition, bank money is a means of resolving issues of recreation and treatment, leisure and work. The number of credit programs offered by banking institutions has long exceeded one hundred. Take your pick - I don’t want to. Many analytical organizations have conducted research on the credit market, according to which it was found that the number of families owing to banks is close to half of the total. Such a time. However, one should not forget about the sad statistics of divorces (divorce) in our country. And when these two statistics are combined, the question arises about the division of credit obligations between spouses in case of divorce.

Given that each spouse has the right to 50% of the jointly acquired property in case of divorce, then he receives the same part of the debt
families - half, unless otherwise provided by the marriage contract.

However, this is all ideally. In practice, however, everything is much more complicated: in most cases, such disputes are resolved in court due to the uncertainty of the legal regime of the spouses' property, as well as the level of their solvency.

So, let's understand this situation.

When applying for a loan for a significant amount (car loan, large consumer loan, mortgage), the bank's mandatory requirement for a married borrower is to attract a second spouse as a co-borrower, which is quite logical, because the bank is thus reinsured against possible non-payment of the amount. Alternatively, the second spouse may be involved as a surety. In any case, the bank increases its chances of obtaining a loan issued.

If the loan amount is not large, then it can be issued to the applicant without involving a second spouse. In the event of a divorce, a situation may arise when the second spouse can refuse to repay the loan only on the basis that he is not the borrower for it.

Looking ahead, it is worth saying that the court may decide in a different way. If it is proved in the court session that the debtor took the loan with the consent of the spouse and spent it in the interests of the family, then the court decision in this part will be the distribution of the debt between the former spouses. This is worth paying attention to.

There are also opposite situations: one of the spouses takes a loan from the bank against the will of the family, against the interests of family members to meet their needs. And here, in proving this fact, you need to work very seriously.

On April 13, 2016, the position of the Supreme Court on the division of the spouses' loan obligations became known. When filing a statement of claim demanding the division of the loan, it is the plaintiff who undertakes to prove the fact of the appointment of the loan funds for the needs of the family. If the husband took a loan, that wife refuses to pay part of it to the bank upon divorce, then it is the husband who must provide irrefutable evidence (usually these are settlement documents: checks, receipts, extracts) that the money was taken in the interests of the family.

Thus, the situation of those citizens who took out consumer or other credit in their own interests is significantly complicated. To oblige the second spouse to pay part of the debt after a divorce is an extremely dubious undertaking.

Section of credit debt by agreement of the spouses

When, nevertheless, the spouses came to the question of dividing the loan, then the simplest, "painless" and economical way would be a mutual agreement. Such an agreement is concluded in writing and is subject to notarization. However, spouses have a choice - which agreement suits them best.

At the time of marriage or before that moment, the spouses can establish their rights and obligations of a property nature, as well as their particularities in the event of a divorce. This is the concept of a marriage contract, enshrined in Art. 40 of the Family Code of the Russian Federation.

In accordance with Art. 41 of the RF IC, this document is in writing and after it is drawn up, it is subject to certification by a notary. In addition, such an agreement can be concluded before the registration of the marriage, however, in this case, the agreement comes into force on the day of the state registration of the relationship.

In Art. 43 of the RF IC defines the procedure for amending the agreement, as well as the grounds for terminating legal relations under it. Changes are made only by agreement between the spouses, after which they are subject to notarization. Typically, this agreement ends on the day of the dissolution of the marriage. A judicial procedure for terminating legal relations under a marriage contract is also possible. Unilateral refusal to fulfill the terms of the contract entails liability established by law.

In a marriage contract, you can specify the following:

• The legal regime of the spouses' property (what property and in what shares belongs to the spouses);
• The procedure for the division of property after divorce;
• Distribution of expenses between spouses;
• Distribution of income between husband and wife.

Cannot be subject to the settlement of a marriage contract:

• Personal non-property relations between spouses (due to the impossibility of control over their implementation, as well as judicial compensation for damage caused by non-performance by one of the parties);
• Provisions limiting the rights and freedoms of citizens in terms of appealing against the actions of a spouse in court;
• The rights and obligations of the mother and father in relation to the child;
• Other provisions that violate the rights and freedoms of spouses or third parties.

If, for some reason, the marriage contract is not suitable for the spouses, then upon divorce they can always conclude an agreement on the division of property.

The property division agreement is a bilateral document that regulates the property rights of the property in stock.

It must contain the following details and provisions:

1. The name of the document type.
2. Locality and date of compilation.
3. Information about the parties entering into the transaction:
   • Full Name.
   • Date and place of birth.
   • Place of residence.
   • Passport data.
4. Content of the agreement:
   • The name of the type of property. In our case, it is an apartment.
   • The address of the location of the apartment;
   • Characteristics of the apartment: total and living area, condition of renovation, cost according to the cadastre.
   • The legal regime of property - in what shares belongs to the spouses.
   • The procedure for changing ownership shares: buyout, sale, etc.
5. Rights and obligations of the parties.
6. Terms of fulfillment of the terms of the agreement.
7. The procedure for amending the provisions of the agreement.
8. Responsibility for non-fulfillment or improper fulfillment of the terms of the contract.
9. Final provisions, date of signing and details of the parties, signatures.
10. Notarization of the agreement.

The division of property and loans in a voluntary way is an indicator of the legal consciousness of citizens, and also has a number of advantages:

• Substantial time savings;
• The ability to establish shares in the property, as well as obligations for the remaining loan amount at your discretion;
• Saving money spent on preparing and considering a dispute in court and on the services of lawyers / civil representatives.

Decision of the issue of division of the loan in court

So, as mentioned earlier, if it is not possible to resolve the dispute peacefully, then the only way out of the situation will be to go to court. Usually, the claim for the division of the loan is considered together with the issue of the division of property, as well as with the issue of divorce.

In our question, in order to make a legal decision on the case, the court must find out for what needs one of the spouses took out a loan - for personal or family. And the initiator of the consideration of the issue (usually the debtor) must provide all available evidence that the loan was taken with the consent of the second spouse and in the interests of the family. In most cases, the proof process is not difficult - if it was purchased for credit funds to be returned, household appliances and electronics (washing machine, TV, vacuum cleaner, etc.), pieces of furniture (kitchen sets, wardrobes and beds, etc.) ), then it is enough to provide the necessary receipts of payment or bank statements, which would record the fact of purchase. The same applies to the purchase of vouchers to a resort or a child to a children's health camp at the expense of bank funds. The court will unequivocally accept the above as general family expenses and will satisfy the claim. In other cases, the debt that was made through the fault of the borrower will remain with him, because it is unlikely that it will be possible to prove the opposite.

Consider the opposite situation: a wife, against the will of her husband, buys a car for herself with credit funds, despite the dubious need for a second means of transportation for the family. In this case, it is she who, upon divorce, must prove that the car was bought to meet the needs of all family members. These are the conclusions of the Plenum of the Supreme Court of the Russian Federation and it is they that are guided by judges when making decisions.

It's another matter if, before taking out a loan, the spouse took the husband's written consent to purchase a car using bank funds. In this case, the court may split the loan.

So, to resolve the dispute, the court must find out the following points:

1. Which of the spouses took out a bank loan?
2. What are the purposes of the loan funds?
3. Did the second spouse agree with the loan? Is there a written consent?
4. Who carried the debt load (paid off the loan) before the divorce.

As evidence of their correctness, the parties provide the following documents:

• The consent of the second spouse to obtain a loan.
• Settlement documents: checks, receipts.
• Purchase contracts.
• Service contracts.
• Receipts of receipt of funds.
• Bank statements of the parties.
• Explanations and oral testimony of other persons who are not subjects of credit legal relations.

A statement of claim for divorce and division of property, credit obligations must contain the following elements:

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• The name of the court to which the statement of claim is filed.
• Applicant Information:
  • Plaintiff's place of work and address.
• Defendant Information:
  • Surname, name and patronymic in full;
  • Date, month and year of birth, as well as place of birth;
  • Place of actual residence and registration of an individual.
  • Defendant's place of work and address.
• Information about the payment of the state duty for filing a statement of claim of a property nature.
• Data on the registration of marriage in the registry office (filled in on the basis of the information in the marriage certificate):
  • Date of registration of the relationship;
  • The registry office in which the entry was made;
  • The number of the entry in the civil registration register.
• Information about the relationship of the second spouse to the divorce proceedings:
  • Oral objections;
  • Notarized consent to the claim.
• Data on children under the age of majority who are supported by spouses:
  • Surname, name and patronymic;
  • Date of Birth;
  • Place of actual residence;
  • Series and number of the child's birth certificate.
• Information about the property that the spouses have acquired during the marriage:
  • Name;
  • The basis for the emergence of ownership.
  • Price.
  • Availability of status and assessment information.
• Information about the promissory notes of the spouses:
  • Date and amount of the loan.
  • The name of the banking institution.
  • Who is the borrower.
  • The presence / absence of the consent of the second spouse.
  • Appointment of the loan.
  • Information about the payment of a debt or part of it.
• Information on the settlement of certain issues of the divorce process:
  • Who will the child / children live with after the divorce?
  • Has an alimony agreement been concluded?
  • Has an agreement been concluded on the division of property?
• Links to articles of the Civil, Family and Civil Procedure Codes of the Russian Federation.
• The petition to dissolve the marriage in court and carry out the division of property, the division of the loan obligations of the spouses.
• If necessary, additional requirements are indicated:
  • Determine the shares in the division of the joint property of the spouses.
• The list of documents attached to the statement of claim confirming the circumstances specified in the appeal to the court.
• Date of submission of the application and personal signature of the plaintiff.

If knowledge in jurisprudence leaves much to be desired, then it is more rational to use the services of a lawyer or civil representative.

If the court does not receive evidence of the need to distribute the debt in a special manner, then the loan debt is divided in the same way as the property that is the common joint property of the spouses.

The role of the bank in resolving the issue of the division of the loan

Does the bank participate in the process of dividing the loan or is the issue resolved in court exclusively between the parties and the court?

Due to the fact that the bank is a legal entity interested in the outcome of the case, it will certainly act as a third party in the court session.

If the bank was not notified of the court session, as a result of which the bank's representative was not able to participate in it, and the court decision violates the rights of the banking institution or contradicts the loan agreement, then, most likely, the appellate instance on the bank's complaint will cancel the decision of the first instance court and issue a new one. ...

Another situation is also possible: despite the absence of a bank representative, the court made a decision that suits the bank. In this case, it is enough for the lender to wait for the execution of the decision or to make the appropriate amendments to the loan agreement upon agreement with the borrower.

In addition, debt re-registration is possible:

1. If there was only one borrower, and the court ordered the division of credit obligations, the bank may, instead of one loan agreement, issue two for each borrower with the same amount equal to half of the total amount owed.
2. Carry out the reverse operation - make one of two loans, if it is actually required by a court decision.

General advice for people wishing to split credit in case of divorce

Let's summarize. The division of the spouses' loan obligations is another task for the court, sometimes more difficult than the division of property. The situation can be complicated by the fact that during their life together, the spouses took out several loans, which at the time of the dissolution of the marriage were not repaid.

For a sober assessment of the situation and the prompt resolution of the issue, you need to know the following:

1. The fastest and most economical way to resolve the issue is to conclude a civil agreement:
   • Property division agreement.
   • Marriage contract.
2. If, due to the peculiarities of the relationship between spouses, drawing up an agreement is extremely problematic or impossible, then you need to prepare a legal basis for going to court: collect the above documents and draw up a statement of claim. If experience and knowledge in jurisprudence is not enough, contact a qualified lawyer for help.
3. The more informative the claim, the better. However, you should not write what is not supported by evidence.
4. Enlist the support of witnesses - inform them in advance about the upcoming meeting.
5. If the defendant is going to use the services of a lawyer, it is better to respond in kind and use qualified legal assistance.
6. Inform the bank about the fact of the dissolution of the marriage, if such has already taken place, and about the judicial review of the dispute about the division of the credit obligations of the former spouses.
7. If the debt is substantial enough, the bank can seize the jointly acquired property, which can cause problems when it is divided in court. Find out the issue and convince bank employees to postpone such measures until a court decision is made.

Analysis of judicial practice and judicial perspective of the dispute

The type of dispute we are considering is quite relevant. As a result, the practice of considering the issue by the courts is also extensive.

As already noted, on April 13, 2016, the Supreme Court of the Russian Federation published a review of judicial practice, which made significant adjustments to the process of judicial consideration of this category of cases. So, we are talking about cases when one of the spouses, contrary to family interests, takes a loan for his needs, and in case of divorce he requires the division of the amount owed:

1. The husband took out several loans for commercial activities, which he did not notify his spouse about. In case of divorce, the court obliged to divide the amount of loans equally, which significantly violated the rights of the spouse.
2. A passenger car acquired during the marriage for credit funds, the spouse presented to the adult son from his first marriage, which the current spouse did not know about. The result would be the same - the division of the loan in proportion to the shares in the property.

Although these variants of court decisions formally corresponded to the letter of the law, they were not fully fair.

How will it be now? It remains only to believe that the courts will take into account the developments of the judicial practice of the Armed Forces of the Russian Federation and apply them in such situations.

To roughly understand what you can count on when filing a claim for a loan section, let's consider a couple of situations:

SITUATION 1

Citizen Karnaukhova I.V. applied to the court with a statement of claim for divorce with citizen A.A. Karnaukhov, division of property and credit obligations.

During their life together, a significant number of property benefits were acquired, some of which were purchased using credit funds. Credit funds were received by I.V. Karnaukhova. on her own, she acted as the sole borrower. The purpose of obtaining loans was to meet family needs that arose when moving to a new apartment: repair work, purchase of furniture and household appliances. The total loan amount was 250,000 rubles. The loan was repaid without delays from the general budget of the family. At the time of filing the statement of claim, the amount of the unpaid debt was 120,000 rubles.

The plaintiff applied to the bank with a request to divide the amount of the debt between her and her spouse, but the bank refused to satisfy the application.

Defendant Karnaukhov A.A. agreed with the claims of the plaintiff in part. In terms of credit liabilities, A.A. Karnaukhov. expressed an objection and refused to pay part of the debt due to the fact that Karnaukhova AND.The. issued a loan in her own name, but he is not in legal relations with the bank.

The court recognized that further cohabitation was contrary to the interests of the spouses and satisfied the requirement to dissolve the marriage.

The property was divided in accordance with the norms of the Family Code of the Russian Federation - equally between the spouses.

With regard to the debt, the court proceeded as follows: in connection with the firm position of the banking institution on the issue of debt repayment by one borrower, credit obligations to the bank should be left for I.V. Karnaukhova. Karnaukhova A.A. to oblige the plaintiff to pay cash in the amount of half of the debt - 60,000 rubles, since the property shares after the divorce turned out to be equal.

Thus, the court took into account all the claims of the plaintiff, as well as of the banking institution: he collected half of the debt from the defendant, and the plaintiff remained the only debtor to the bank.

SITUATION 2

Shilova E.I. during married life with B.G. Shilov. acquired a vehicle on credit - a Toyota RAV4 passenger car. The loan agreement was drawn up by EI Shilova, but the debt was repaid from the family budget.

After some time, the relationship between the spouses worsened. Shilov B.G. refused to allocate funds for loan payments.
Shilova E.I. was forced to go to court with a statement of claim against her husband about dividing the existing loan equally.

The court, taking into account the claims, having heard the objections of the defendant and the position of the bank representative, decided to leave the car in the ownership of the plaintiff, while obliging her to pay half of the cost of the vehicle to the defendant B.G. Shilov. The defendant, in turn, is obliged to pay half of the debt on the loan to the plaintiff.

However, the spouses applied for the approval of an amicable agreement between them, according to which the car remains in the wife's property, and the spouse loses the right to receive half of its value upon dissolution of the marriage. Credit liabilities Shilova E.I. pays in full.

The court approved the settlement agreement.

After analyzing these situations, draw your own conclusions. The only thing I would like to add: it is better to resolve all property issues independently through negotiations. This will save you valuable time and save your family and personal budget from unnecessary expenses.

The property relations of spouses are not only jointly acquired property, but also debts on loans that often appeared during the marriage. When intending to divide property, the issue of dividing loans, like other debts, often causes more fierce disputes than other material issues, especially when it comes to car loans, mortgages and other serious credit debts.

Unfortunately, not all spouses manage to agree on a peaceful settlement of property relations. It is one thing to lose part of the property, but at the same time retain a certain part of it. Another thing is to be alone with debts, with which it was previously planned to pay off jointly. So how are loans divided in case of divorce? Let's figure it out.

Section of credit debts from the standpoint of the law

The Family Code treats the debts of spouses in almost the same way as it does to jointly acquired property:

1. If there is a marriage contract, property and debts are divided as provided by its terms.
2. If there is no marriage contract, or its conditions do not determine the procedure for the division of obligations, then the joint debts of the spouses are divided in proportion to the shares awarded to them in the joint property.

From the point of view of the law, it does not matter for which of the spouses the loan was issued, and for what the funds were spent. As a general rule, it is believed that loans are received and formalized by mutual consent of the spouses, and are spent on the needs of the family. If the spouse, who did not participate in the execution of the loan agreement, cannot prove the opposite, then the court will base its position on these statements. Thus, in the event of a dispute, the task of the spouse who does not agree to take on the obligations of the loan is to prove the following:

• the loan was arranged by the second spouse without the knowledge or consent of the first;
• the funds received were not directed to the needs of the family, but were spent by the spouse who received them for personal or other purposes.

If such facts can be proved, and both at once, this will mean the recognition of the loan debt as personal (personal), which is not subject to division and remains the obligation of only one spouse - who issued the loan, received and spent the funds.

Knowing perfectly well the controversial situations between spouses regarding the division of credit debts, currently banks are actively opposing the occurrence of both such disputes and problems with their resolution.

If there is evidence that the borrower is married (it is extremely difficult to hide this, and if it succeeds, it will be direct evidence of a loan for personal and not family needs), banks demand from the borrower an additional package of documents - at least the written consent of the second spouse to obtaining (registration) of a loan.

To increase the effectiveness of their insurance against possible disputes, banks often practice other approaches, in particular, they issue a loan on the condition that the second spouse acts either in the status of a co-borrower or in the status of a guarantor. In any case, this will mean joint liability of the spouses for credit obligations.

The bank also protects its interests by refusing to give consent to the change of persons in the loan obligation. This right is enshrined in the law and can be exercised by the bank in the event that the spouses share the loan debt both by way of a peace agreement and in court proceedings. As a rule, banks apply this right when there are reasons to believe that the division of the obligation will adversely affect the timing and quality of its performance.

Section of different types of loans

The law does not make any special distinctions between different types of loans when they are divided between spouses. At the same time, in practice, including in judicial practice, there are some features of the division of debts depending on the characteristics of the loan product. They are not required for use, but can effectively help to negotiate and resolve a problem situation.

Within the framework of a large targeted loan for the purchase of a car or real estate, where the object is a collateral, the following options are possible:

• sale with the consent of the bank of the collateral and early repayment of the loan at the expense of the proceeds from the purchase of funds;
• acceptance by one of the spouses of all loan obligations along with obtaining the full rights to the property acquired on credit;
• receipt by one of the spouses of all rights to the property acquired on credit, all loan obligations and payment of compensation to the other spouse minus his share in the obligation to repay the loan;
• contacting the bank with a request to revise the terms of the agreement with the conclusion of a separate loan agreement with each of their spouses (although banks are not particularly willing to take this kind of action, with a good financial position of each spouse, such a division of debt is possible).

The main problem of the section of the target loan is the difficulty of dividing the object acquired on credit. It is on this occasion that the spouses often cannot agree. As a general rule, if the property is retained in full rights only by one of the spouses, it will also be responsible for paying the debt associated with this property. Other approaches are possible:

• in situations of having minor children and other conditions under which one of the spouses can claim a larger share in joint property than is equal to the other spouse;
• if the value of the property and the amount of debt are disproportionate, but in this case the spouses may agree or the court may oblige to pay monetary compensation.

It is even more difficult to divide up non-targeted cash loans - received by credit cards or cash. The main problem of such loans is the difficulty of proving by the disputing party that the spouse spent the funds on personal and not family needs. If it is not possible to document what the money was spent on (credit card statements, checks, witnesses), then the court, as a rule, is limited to a simple division of the debt in half.

The situation with consumer loans is somewhat simpler, but everything largely depends on what exactly was purchased on credit. If the loan was issued, say, for the purchase of furniture for the apartment of the spouses, then it will definitely be divided in half. On the other hand, if a thing was purchased with credit funds, which, due to its characteristics, is needed only by one spouse, the second did not use it, and it did not bring income to the family, then, most likely, the debt will be considered as personal, and the obligations under it will be assigned to the one who took out the loan.

To resolve all issues with property and debts amicably is the most reasonable way to settle property disputes between spouses. Moreover, the trial can continue for a long time, with expenditures and efforts, and time, and money. If there is an agreement between the spouses, it is important to formalize it in writing and, better, by certifying the agreement with a notary.

If it is not possible to come to an agreement, then all issues are resolved in court. In this case, it is advisable to simultaneously divide both property and debts. The fact is that if only property is divided in one trial, then the court:

• may refuse to accept a separate claim for the division of debts, guided by the fact that the property issue has already been the subject of judicial review;
• or will take as a basis the decision of the first court and divide the debt, guided by the size of the shares in the jointly acquired property, which were determined in the framework of the first trial, and will not consider any additional arguments of the parties.

If there is a dispute:

1. It is important to competently prepare your position, make calculations and present your vision of the division of both property and debt to the court.
2. If the loan concerns the acquisition of specific property (car, real estate, furniture, etc.), it is advisable to present to the court its position on the division of this specific property and debt, and, if necessary, the issue of payment of compensation.
3. It is the responsibility of the second spouse to prove that one spouse has received a loan for personal purposes, and not for the needs of the family. By default, the loan is considered to be received for family needs.
4. All arguments of the parties must be supported by evidence: ideally - documents, in extreme cases - at least testimony.

The court resolves the dispute by way of action. If one of the spouses submits a claim, the other spouse may present his objections to the claim before the commencement of the process of considering the case on the merits. The parties have the right to agree on a peaceful settlement of the dispute until the court makes a final decision on the case. The amicable agreement is approved by the court.

When dividing the common property of the spouses, the total debts of the spouses are taken into account.
The total debts between the spouses are distributed in proportion to the shares awarded to them, if the court finds that the subjects of the monetary obligation are both spouses or one of them, but in the interests of the family.

The complexity of resolving disputes in this category is associated with various options for the origin of the spouses' common debts, the different subject composition of monetary obligations and borrowed legal relations, including under loan agreements, in which:

• the borrower can be one of the spouses or both spouses;
• co-borrowers can be both spouses and any relative (or other citizen) who, within the meaning of the RF IC, does not belong to the family of spouses who are married to each other.

In addition, the borrowers and guarantors (spouses) bear obligations under the loan agreement on a joint basis, and Article 39 of the RF IC indicates the distribution of the total debts of the spouses in proportion to the shares awarded, and therefore, the complexity of the wording (presentation) in the court decision arises, including including, in the operative part of the decision, instructions on the distribution of the common debts of the spouses.
Therefore, it is necessary to proceed from the requirements of paragraph 3 of Art. 39 of the RF IC, providing for the distribution of common debts between the spouses.
When resolving each specific dispute about the distribution of the spouses' total debts, the courts establish the opinion of borrowers, guarantors, and a credit institution (bank) on this matter.

Legally significant circumstances for the recognition of joint debts is the establishment of the fact that spouses received money on credit (in debt) during marriage for the needs of the family and in the interests of the family, as well as their spending on the needs of the family and in the interests of the family.

Of the cases received for generalization, which resolved disputes about the distribution of the spouses' total debts, there are three main areas.

• The distribution of the spouses' total debts in proportion to the shares awarded. Division of debt obligations in equal shares.

The most common formulations used in the distribution of the loan debt between the spouses (in case of equal shares): "The debt under the loan agreement dated November 24, 2005 to the Bank in the amount of 1,800,000 rubles as of June 22, 2009, shall be divided between the spouses in proportion to the shares awarded: 50% - from the defendant E.Yu. and 50% from the plaintiff E.V. " The bank (third party) argued that in case of delay, a claim would be brought, in accordance with the requirements of the Civil Code of the Russian Federation. At the same time, the claims of the plaintiff E.V. were satisfied, and the parties recognized the ownership of 1/2 share in the house and land plot pledged under the loan agreement dated November 24, 2005 (decision of the Stavropol District Court dated June 22, 2009) ...
Output. A similar distribution of the common debts of the spouses in the order of Art. 39 of the RF IC does not interfere with the further fulfillment in solidarity of obligations under the unfulfilled loan agreement, according to which the funds were received by the spouses (or one of them) during the marriage for the needs of the family and spent in the interests of the family, which follows from the specific examples of consideration given below disputes.
Thus, the court recognized the promissory notes of the spouses L.G. and L.E. to the bank under a loan agreement dated May 13, 2008 in the amount of 146,000 rubles on the principal debt - the decision of the Avtozavodsky District Court of Togliatti dated November 23, 2009 (the husband is the borrower, and the wife is the guarantor.)
The operative part of the decision of the Neftegorsk District Court of May 29, 2009 is set out as follows: "The debt under the loan agreement concluded between the Bank and the defendant K.Yu., which at the time of the consideration of the case amounted to 60,000 rubles, shall be divided between K.Yu. and K. E. in equal shares. Determine the debt of K.Yu. and K.E - 30,000 rubles each. "
In another case, the court divided between the spouses A.V. and A.S. property in equal shares, and divided between the spouses A.The. and A.S. credit debt (concluded between A.V. and the bank), amounting to 200 thousand rubles at the time of consideration of the case. The court determined the debt A.The. and A.S. - 100 thousand rubles for each.

The Central District Court on 23.04.2009 considered the case on the division of property of the spouses E.T. (the plaintiff) and E.N. (the defendant) who during the marriage acquired: an apartment, furniture, household appliances. In relation to the apartment, a marriage contract has been concluded, according to which the husband's share is 2/3, the wife's share is 1/3. During the marriage, two loan agreements were concluded, one of which (in the amount of 300 thousand rubles) was concluded between the bank and the defendant E.N. (the first loan was spent on the purchase of an apartment); under both loan agreements, the loan was not repaid, therefore, under the loan agreement (under which money was spent on the purchase of an apartment in respect of which there is a marriage contract), the total debt of the spouses is divided as follows: the share of the husband (respondent) - 2/3, the share of the wife - 1 / 3.
According to the second loan agreement, the total debt is divided in equal shares (legal regime of matrimonial property), and, in the court decision, each spouse is recognized as a common debt (under two loan agreements) in monetary terms (for example: for a husband - in the amount of 173,000 rubles, for his wife - in the amount of 111.900 rubles).
The Shigonskiy District Court on November 18, 2009 divided the property between the spouses and the payment of the balance of the outstanding loan in the amount of 120 thousand rubles to the bank under the loan agreement concluded between the bank and the defendant B.M. for a period of 10.07.2012. At the same time, the court assigned the defendant B.M. (the borrower) to fulfill the loan agreement, collecting from the plaintiff G.N. in favor of the defendant B.M. half of the balance of the outstanding loan under the same loan agreement in the amount of 60,000 thousand rubles, by deferring the payment of the specified amount of money in equal installments of 2570 rubles. monthly, no later than the 10th day of each month (the defendant agreed with such an installment plan; according to the schedule, payment to the bank of the loan and interest - also on the 10th day of each month). It should be noted that the court's decision is in the nature of an amicable agreement.

The Pestravskiy District Court, dated October 29, 2009, divided the property of M.O. and M.R., who during their marriage acquired a controversial two-room apartment on the basis of an agreement on the provision of borrowers K.M. and K.N. (to spouses) a mortgage (target) loan in the amount of 380 thousand rubles, a sale and purchase agreement and a mortgage, after which the disputed apartment is registered with the spouses on the basis of common joint ownership; encumbrance of the apartment - mortgage. At the request of the plaintiff, the court divided the disputed apartment between the spouses in equal shares - 1/2 share each, established the procedure for use (the plaintiff and her son - a room of 16.1 sq.m., the defendant - a room of 11 sq.m., the rest premises - in the order of general use). The court recognized for each of the spouses under an agreement on the provision of a mortgage loan before the Samara Regional Fund for Supporting Individual Construction in the Rural Area in the amount of 1/2 share of the debt in proportion to the property awarded. The Samara Regional Fund for the Support of Individual Construction in Rural Areas agreed with the claim for recognition of 1/2 of the debt for each of the spouses in proportion to the allocated shares in the disputed apartment.

• In judicial practice, there are cases on the distribution of the common debts of spouses with the participation of creditors (banks) who agree to their division between the spouses.

By the decision of the Novokuibyshevsk city court of 10.06.2009, the spouses K.I. (the plaintiff) and K.C. (the defendant) recognized the ownership of 1/2 of the share in the disputed apartment pledged by the bank, and, with the consent of the bank (creditor), a total debt was divided between the spouses in the total amount of 437,330 rubles. (debt at the time of the court's decision) under a loan agreement dated October 19, 2006, concluded between the bank (on the one hand) and the borrowers-spouses K.I. and K.S. (on the other hand) for a loan amount of 1.5 million rubles; the bank is obliged to amend the loan agreement dated October 19, 2006 in terms of instructions: to establish the debt at the time of the court decision - 437,330 rubles. with interest, - to recover from the plaintiff K.AND. (taking into account the repayment of a part of the debt by her at the expense of personal funds) in repayment of the debt the sum of money in the amount of 175 855 rubles. with interest, and from the defendant - RUB 261,475. with interest.
At the hearing, the bank's representative agreed with the division of the loan mortgage between the spouses, and in the future the bank did not appeal against the court's decision regarding the division of the spouses' common debts.
By the cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated July 27, 2009, the court's decision was changed, and it was decided to set out the operative part of the decision regarding the determination of the spouses' debt under the loan agreement in a different edition: "Divide the debt of K.S. and K.I. under the loan agreement of 19.10.2006, concluded between the bank and KS and K.I., in the amount of 437,330 rubles with interest Determine the debt of the plaintiff K.I. - 175,855 rubles with interest. KS - 261,475 rubles with interest. " (the instruction on changing the loan agreement was reasonably excluded from the court decision, and, from the court's decision, the instruction on collecting the debt under the loan agreement from the spouses was excluded, since such claims were not declared).

In judicial practice, there are also cases on the distribution of common debts of spouses with the participation of creditors (banks) who agree to change the number of borrowers in the total monetary obligation of the spouses, therefore, with the consent of the lender (bank), as well as with the consent of the surety, the court imposed on one spouse to fulfill the conditions a loan agreement (according to which both spouses are co-borrowers) for the payment of the remaining loan debt upon transfer to this (first) spouse of the disputed pledged property (acquired by the spouses with credit funds), excluding the second spouse (co-borrower) from the loan agreements and the pledge agreement, by paying the second spouse 1 / 2 part of the money paid by the spouses during the marriage under the loan agreement. So, the Leninsky District Court of Samara on 20.04.2009, transferred to the ownership of the defendant G.M. the disputable car pledged in the bank, and with the consent of the bank against the defendant G.M. entrusted with all the rights and obligations under the loan agreement of 10.12.2007 and under the pledge agreement of 10.12.2007 for the car, excluding the plaintiff G.E. from these contracts. When recovering from the defendant G.M. in favor of the plaintiff G.E. the total amount of monetary compensation is taken into account that of the money paid by the spouses during the marriage in the amount of 1,600,000 rubles. as a return of credit funds, from the defendant from the defendant G.M. in favor of the plaintiff G.E. 1/2 of their part (or 800,000 rubles) are subject to recovery. At the same time, the court took into account the arguments of the third person - the bank, who argued that in the loan agreement for 6.6 million rubles. both spouses are indicated by the borrowers, but the loan was granted to the defendant G.M. taking into account his solvency (if only the plaintiff applied, the loan would not have been provided); the bank agrees to transfer the car to the defendant G.M. in order to release the plaintiff G.E. from the execution of the loan agreement and the pledge agreement; The third person - the surety V.I. (the defendant's sister G.M.) also agrees with this option for dividing the common debts of the spouses. In the future, the bank and the guarantor V.I. did not appeal against the decision of the court.
In judicial practice, there are cases on the distribution of the common debts of spouses with the participation of creditors (banks) who agree to their division between the spouses, however, as a general rule, the court decision should not contain the wording on changing the loan agreement, since, in accordance with paragraph 3 of Art. ... 39 of the RF IC, disputes about the distribution of the spouses' common debts are being resolved.
Occasionally in judicial practice, there are cases (exceptions to the general rule) when, only with the consent of the creditor (bank), the courts occasionally transfer the rights and obligations of borrowers under a loan agreement (according to which both spouses are co-borrowers) to only one spouse, which follows from the following example. So, under the loan agreement dated 15.10.2007, the wife of K.V. and N.R. (co-borrowers) during the marriage received borrowed funds from the Bank to purchase a car, the loan has not yet been paid; the car, as a result of the division of property, was transferred to the ownership of the defendant K.V., with which he did not argue, agreeing to be charged with the obligation to pay the entire amount of the principal debt and interest under the loan agreement for the car with payment of monetary compensation to his wife. The bank, without presenting any claims, agreed to the division of common debts between the spouses, since both spouses are co-borrowers. The court handed over the car to the defendant K.The. and unreasonably exacted from the defendant K.The. in favor of the bank all the debt under the loan agreement dated 15.10.2007 in the total amount of 280 thousand rubles. (including the main debt - 220,000 rubles, interest - 60,000 rubles), collecting from the defendant K.V. in favor of the plaintiff N.R. appropriate monetary compensation for the car; the plaintiff agreed to be paid monetary compensation for the car. By the decision of the same court, it was also divided equally between the spouses K.V. and N.R. another debt for a mortgage loan to Bank No. 2 under the second loan agreement dated June 27, 2008, in the total amount of 1.6 million rubles. principal debt with interest, that is, each for 800,000 rubles. principal with interest. The cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated May 26, 2009 correctly excluded from the court's decision the instruction to recover from K.The. in favor of the bank debts under the loan agreement dated 15.10.2007 in the amount of 280,000 rubles, and, to the defendant K.The. the rights and obligations of the plaintiff N.R. were transferred. under the first loan agreement on October 15, 2007 (concluded between the bank and the co-borrowers - spouses K.V. and N.R.), since the bank did not file any claims for collection of the loan debt.

• The courts refuse to distribute the total loan debt between the spouses, if the borrowers are, in addition to the spouses, other persons.

Thus, the Avtozavodskiy District Court of Togliatti on April 21, 2009 correctly dismissed the claim for the division of common debts into three parts in equal shares between the three co-borrowers (both spouses and the defendant's father) under the loan agreement on the grounds that the claim for the division of debts was actually is aimed at changing the loan agreement (which provides for joint liability of three co-borrowers, provided that the creditor (bank) does not agree with the division of the debt.
Conclusion: in the order of paragraph 3 of Art. 39 of the RF IC, in this particular case, the debts between the spouses cannot be distributed without changing the loan agreement, since the third debtor (except for the spouses) is another person (the defendant's father), therefore it is impossible to conclude that the money was spent in the interests of the two spouses ... In accordance with the requirements of paragraph 3 of Art. 39 of the RF IC, only the general debts of the spouses can be distributed.
Similarly, the dispute was resolved by the Zheleznodorozhny District Court of Samara on 15.05.2009, when the plaintiff N.N. denied a claim against the defendant NA, against the third party bank for the division of the total credit debt in the amount of 1,200,000 RUB. under a loan agreement dated 19.09.2007, concluded between the bank and three borrowers - spouses N.A., N.N., their joint child; the apartment acquired with a loan was mortgaged by virtue of the law, and, for the spouses and their child, the pledge agreement (before the plaintiff went to court) recognized the right of common share (1/3 of a share) ownership of the mortgaged apartment. The plaintiff asked to divide (which she was denied) the credit debt as of 30.03.2009 in the amount of 1.2 million rubles. between her and the defendant, in accordance with the shares for the purchased apartment (the child lives with her, she actually pays the entire loan every month), oblige the defendant to independently pay the bank the debt under the loan agreement in the amount of 400 thousand rubles. (1/3 part of 1.2 million rubles); no claims for the division of property have been declared. The claim was denied on the grounds that the loan agreement determined the joint liability of the spouses to pay off the loan; the spouses did not apply to the bank with a demand to amend the agreement in this part.
Output.
From the court's decision to dismiss the claim for the distribution of the spouses 'common debts, it follows that the ground for refusal is not the absence of the spouses' common debts. It follows from such a refusal decision that the spouses and another person on a certain date (for example, at the time of termination of the marriage relationship between the two spouses) has a common debt, and therefore, the spouses are not deprived of the right to protect their property rights in any other way in the future (including , including, by changing the loan agreement, by collecting a certain amount of money from the other spouse after the actual payment of the loan, etc.).
In judicial practice, errors are encountered when determining the share of spouses from total debts, which, on the basis of Part 3 of Art. 39 of the RF IC, should be distributed between the spouses in proportion to the shares awarded to them. which follows from the following example. By the decision of the Krasnoglinsky District Court of 08.10.2009, the joint property of the spouses M. was divided, and each of the spouses was allocated 1/2 share of the property (the marriage was concluded on 04.03.1988 and dissolved on 27.04.2009, but the actual marriage the relationship was terminated earlier, and the joint economy has not been conducted since July 2008), however, during the marriage, a loan agreement was concluded in the name of the plaintiff for the needs of the family, paid in full by the plaintiff; the plaintiff made payments in the amount of 74,134 rubles from her own funds for the period from 08/01/2008 to 05/08/2009 (when the parties did not run a joint household), that is, for the period from the moment of termination of the marriage relationship (from 08/01/2008 .) and until the actual payment (by 08.05.2009), however, the court of first instance, in violation of Part 3 of Art. 39 of the RF IC, collected from the defendant 1/3 of the total debt (instead of 1/2 share).
The cassation ruling of the Judicial Collegium for Civil Cases of the Samara Regional Court dated November 18, 2009, corrected the indicated violation of the first instance court, and the defendant's share in the total debt was determined at 1/2.
Clause 3 of Art. 39 of the RF IC provides for the distribution of only the total debts of the spouses (and not collection), and therefore, when resolving disputes about the distribution of the common debts of the spouses, the courts do the wrong thing when they indicate in the decision to collect certain sums of money from one of the spouses (for example, to collect 1/2 part of the principal debt and interest in the amount of 100 thousand rubles of the total amount of 200 thousand rubles) under a loan agreement, according to which: either both spouses are co-borrowers, or one spouse is a borrower, and the other is a guarantor spouse, as in practice they meet cases when one of the spouses actually pays the specified 100 thousand rubles to the other spouse or the bank, and the other spouse evades paying the loan and interest to the bank, despite the fact that the loan agreement has not been changed. In this case, in the event of a credit debt, the bank goes to court with a claim for joint and several collection of credit debt from both spouses. Consequently, in this case, the spouse who paid 100 thousand rubles. under the loan agreement is not released from joint and several liability to pay the loan and interest.
When distributing the total debts of the spouses according to receipts issued by the spouses (or one of the spouses) to an individual for receiving money in debt, and when collecting the total debt from the spouses on a bill of promissory note, the courts carefully check the evidence presented by the parties, and, only upon proof, rarely satisfy such claims. At the same time, the courts check for what purposes the funds were borrowed and what they were spent on, etc.
Thus, the plaintiff G.D. went to court to the ex-wife of S.D. on the division of property, and asked to transfer certain property to each party (they were married from 20.11.2008 to 27.01.2008). In addition, the plaintiff G.D. asked the court to divide the promissory notes between the spouses on a receipt dated 11/13/2006 in the amount of 600,000 rubles and interest in the amount of 115,000 rubles. before the citizen K.M. (the receipt was issued by the plaintiff GD to this citizen K.M.) The court separated the claims of the plaintiff GD into separate proceedings. to the ex-wife of S.D., to the third person K.M. (to the creditor) about the division of the debt obligation.
3rd person K.M. filed an independent claim against the spouses of G.D. and S.D. on the collection under the same receipt dated November 13, 2006, the principal debt in the amount of 600 thousand rubles in equal shares (300 thousand rubles from each spouse) and interest in the amount of 160 thousand rubles. in equal shares (80 thousand rubles from each spouse). The plaintiff's claims about the division of the promissory note and the claims of the third person K.M. to the spouses on the collection of debt and interest on a receipt dated 13.11.2006. combined into one production. Avtozavodskiy District Court of Togliatti from 31.08.2009, the claims of the plaintiff G.D. and the third person K.M. satisfied; between the spouses G.D. and S.D. the total debt to the third person K.M. is equally divided

Article 39 of the Family Code - Determination of shares in the division of the common property of the spouses

1 ... When dividing the common property of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.
2 ... The court has the right to deviate from the beginning of the equality of the spouses' shares in their common property based on the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular, in cases where the other spouse did not receive income for disreputable reasons or spent the common property of the spouses to the detriment of the interests of the family.
3 ... The common debts of the spouses in the division of the common property of the spouses are distributed between the spouses in proportion to the shares awarded to them.