Division of property during divorce is a procedure provided for by the Family Code within the framework of divorce proceedings. According to the provisions of the current legislation, not only the property of the spouses is subject to division, but also their rights and obligations, primarily of a property nature: DEBT, LOANS, MORTGAGE.

The question is relevant today, since it is rare for a family to manage without using all kinds of loans and borrowings, including mortgages.

How to divide a loan obligation, how this issue is regulated by legal norms and law enforcement practice - this is what I will talk about today.

○ Debts: general or personal, types of debts and their differences.

What is debt? Debt is an officially confirmed obligation to pay money on time. The debt can be confirmed by a loan agreement, or in any other way.

Within the meaning of Article 45 of the Family Code of the Russian Federation, Debts are divided between spouses in equal shares, that is, each of them is obliged to pay half of it. But this is a general rule, and when dividing property obligations, one should take into account the specifics of the debt and the purposes for which the borrowed funds were spent.

Another division procedure may include a marriage contract (I talked about it in the article “”).

Law enforcement practice separates personal and common debts of spouses. The category of personal debts includes obligations incurred to satisfy the personal needs of the spouse.

✔ General debts.

• Obligations that were created by the will of both spouses. In other words, these are loans in which spouses act as co-borrowers, or one of the spouses is involved as a guarantor.
• Obligations in which the funds received were spent on the material needs of the family - general recreation, purchase of furniture, repairs, purchase of a car, etc.

Personal debts do not have these characteristics.

✔ Personal debts.

The personal obligation of one of the spouses implies spending money received specifically to meet the personal needs of one of the family members- for example, an individual trip abroad, the acquisition of an item that can be classified as personal property, etc.

When considering this issue, you should definitely keep in mind that the court, by default, considers all property obligations of the spouses as general. Proving the personal nature of debts falls on the shoulders of the spouse who does not want the division of this obligation and the fulfillment of part of it within the framework of the division of property.

Any documents proving the expenditure of funds on the personal individual needs of the spouse, photographs and videos, and witness statements can be used as evidence here. In some cases, you cannot do without the help of a lawyer specializing in family disputes.

✔ Fictitious debts.

In the practice of resolving family disputes, there is such a thing as a fictitious debt - an insignificant obligation within the framework of which a loan agreement has been concluded or there is a receipt, but the actual transfer of funds has not been made.

According to the rules of law, the fictitiousness of the debt must be proven by the injured party, namely the spouse, whose responsibility may be to repay a non-existent debt. In practice, such cases are the most difficult due to the fact that the law guarantees the lender’s right to return funds provided under or.

The fictitiousness of an obligation can be proven in the following ways:

• Expertise of any kind, including graphological, handwriting, etc.
• Witness testimony.
• Analysis of the family’s financial situation at the time of taking out such an insignificant loan and after it.
• Analysis of relationships and family ties spouses and creditor.
• In other ways.

It is very difficult to independently prove the fictitiousness of a loan. For best results, I highly recommend it.

○ The procedure for dividing loans and debts during a divorce.

There are two types of divisions: by consent of the spouses, this is when an agreement has been reached and in judicial order when there is no such agreement and the spouses cannot reach it. Let's look at both options in more detail.

✔ Division by consent of the spouses.

In addition to the division of property in court, family law also provides for such a procedure to be carried out by spouses independently, by mutual agreement. As a rule, in this case, between spouses, which, at the request of the parties, can be notarized.

If you plan to distribute debts during a divorce in this way, you should consider the following nuances:

1) The agreement must spell out in detail all the property obligations of the spouses, indicating the details of the agreement or receipt, the balance of the debt, etc.

2) It is necessary to describe in no less detail the regime for dividing debts: to establish what obligation is assigned to whom, what amount must be paid by each spouse monthly, how property acquired as part of targeted loans and borrowings is distributed.

If the agreement does not provide for all obligations and the procedure for their fulfillment after the divorce, you need to be prepared for the fact that each spouse has the right of recourse to collect the debt paid by him after the divorce. In other words, a procedure for repaying a loan that is not specified in the agreement may result in a court decision for you to recover part of it in favor of your ex-spouse.

In addition, when drawing up an agreement, as a rule, creditors and credit organizations in whose favor debt payments are made are not involved. The agreement also does not have the force of an executive document, and if your spouse violates its provisions, you will have no choice but to go to court for the division of debts.

✔ Division in court (by court decision).

In order to divide property in court, it is necessary to prepare and submit to the court with the appropriate requirements. In other words, in the text of the claim, the applicant offers the court an option for dividing property and debt obligations.

It should be noted that when considering the case it will be necessary to involve a lender or bank representative.

The general principles for dividing the obligations of spouses in court are as follows:

1) The debt is divided in proportion to the awarded shares of the spouses in the mass of the common property, that is, if an apartment purchased with a mortgage is divided in half, accordingly, the procedure for fulfilling the loan obligation also falls in equal shares on each of their spouses.

2) If an object purchased on credit remains with one of the spouses, the repayment of the loan falls on his shoulders.

○ How is a car loan divided in a divorce?

I will give options for the development of events using the example of a section of a car purchased on credit. So, a car purchased during marriage is in any case considered joint property of the spouses. So, the ways to divide it can be as follows:

1) The car remains with one of the spouses, and the loan repayment is assigned to him in full.

2) Ownership of the car is divided between the spouses, each of whom is obliged to repay the loan debt in proportion to the share awarded to him in the ownership of the vehicle.

3) Ownership of the car is divided between the spouses. At the same time, one of them was paid the cost of his share in the right; he has no further claims to the car. The obligation is also subject to fulfillment by both spouses within the framework of the shares awarded to them in the right to the vehicle.

I would like to draw your attention to the fact that today in judicial practice there is no uniform policy for resolving disputes of this kind.

The division of loans in court largely depends on the nature of the obligation, the position of the creditor, the mutual claims of the spouses and the presence of personal and fictitious debts.

○ Mortgage division in divorce.

The division of a mortgage in a divorce is one of the most complex procedures within the division of property, and also (in my experience) one of the most pressing issues for divorcing spouses. And this is understandable, because the cost of a mortgage/apartment is quite significant.

The complexity is due to the fact that, within the meaning of the current legislation, property that is pledged - namely, housing purchased with a mortgage - indivisible thing.

✔ How is a mortgage taken BEFORE and DURING marriage divided?

It should be noted that if an apartment was purchased with a mortgage before marriage, as a general rule, such real estate not subject to division, despite the fact that payments were made from the family budget.

If the mortgage loan was issued after the marriage, real estate is considered common property spouses, regardless of whether the husband or wife acts as the borrower.

✔ Section order and solution options.

As I said above, there is no uniform judicial practice on the division of debts after a divorce; things are even more complicated with a mortgage.

In order to divide the obligation for a mortgage loan, it is necessary to divide the collateral, which formally contradicts the norms of current legislation.

Banks are also very reluctant to share mortgages - re-registration of documents does not arouse their enthusiasm.

There may be several options for the development of events:

1) Determine in the agreement the shares in the monthly payment of each spouse, continue to fulfill the obligation and dispose of the real estate after the debt is repaid and the encumbrance in the form of collateral is removed.

2) Sell ​​the apartment with the consent of the bank and divide the amount received after repaying the loan debt, in accordance with the norms of family law.

3) Pay the balance of the debt, remove the encumbrance in the form of collateral and divide the property in accordance with the Family Code of the Russian Federation.

Any of the options for dividing a mortgaged apartment must be agreed with the bank.

Video

Video: a mortgage broker and a realtor, together with the presenter, discuss mortgage issues during a divorce.

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Debts- these are financial obligations that arise on the basis of various legal relationships. These may be credit obligations to a banking institution, debts for loan repayment to individuals or compensation for material and moral damage as a result of a flooded living space or a broken vehicle.

But does the Government of the Russian Federation provide for exceptions and features when dividing debt after the dissolution of an official marriage? In accordance with Family Code of the Russian Federation During a divorce, not only acquired property and belongings are subject to division, but also all debts that were issued during the marriage are also considered joint (the rights and obligations of even former spouses remain equal in this matter: details -).

Are debts of spouses divided upon divorce?

If the former spouses took out a loan for two and then decided to file for divorce, its division will be implemented on the basis of the generally accepted rules of the Family Code. The provisions of this legal document regulate that property acquired in a joint marriage is divided equally, including common debts.

Debts of spouses during a divorce according to Article 45 of the RF IC are common:

• debtors are both spouses (that is, co-borrowers) or those obligations in which one spouse is considered a debtor (borrower) and the other is a guarantor. The debt in a divorce will be collected in equal shares;
• only one of the spouses is the debtor, but provided that the total amount of debt was used for the needs of the family. There are cases when a husband/wife takes out a loan from a bank to meet the needs of the family: to make repairs in the house to improve living conditions or to buy household appliances (washing machine, refrigerator, etc.). The corresponding debt is also recognized by the court as general.

How are they divided?

The principle of equality of spouses is taken as the basis for resolving the issue. This means that everyone becomes a debtor in the amount of 1/2 of the total amount owed. defines a number of exceptions that arise when dividing the debt obligations of a husband and wife when filing a divorce. A judicial organization may deviate from the general rules in order to protect the interests of spouses if one of them, for unjustified reasons, did not bring income to the family. He arbitrarily disposed of the family’s property not in its interests, thereby infringing on the rights of minor children.

Important! The legislator does not prohibit one of the spouses from taking on debts entirely and releasing the other party from debts.

Methods for dividing debts during divorce:

• settlement agreement. An agreement is concluded between the parties if both spouses agree on how the division will be implemented, who will pay the debt and in what amounts;
• through the court. If the ex-husband and wife cannot come to an agreement, one of them sends a statement of claim to the court.

Attention! Civil Code states: an agreement can be changed or canceled only by agreement of the parties, unless otherwise provided by the code, other laws or an additional agreement.

Joint debt obligations

Common debt obligations are debts that arose on the initiative of the spouses for the sake of the interests of the family. Even if the initiative came from one spouse, but all the money received was used for the needs of the family, the corresponding debt is also considered joint.

Joint debt obligations are divided into 3 types:

• buying things on credit, this category also includes a mortgage;
• education of common children;
• household needs of the family (household appliances, everyday items).

The main consequence of recognizing debt as common is equal distribution of debt obligations in the event of a formal divorce. If the joint debt is not repaid, it will be collected from the common property of the spouses. Bailiffs sell real estate forcibly, and all proceeds are transferred to the creditor bank.

Personal debts

The court may recognize a separate category of debts as personal debts, which will not be subject to division in the event of a divorce. Such obligations may include debts incurred before the official registration of marriage, namely:

• obligations to pay monetary compensation in connection with offenses;
• debts incurred for purely personal needs (treatment of a sick relative, repair of personal property, traveling alone, etc.).

In order to confirm the personal nature of the spouse’s debt, you must provide evidence that the money was not spent on the family, and also prove that the family did not need the loan received (income certificates, bank statements).

Credit debts

Difficulties arise with the division of mortgage debt during a divorce. This is due to the fact that creditor banks require that spouses act as co-borrowers when applying for a loan. In this case, according to the law and the agreement drawn up, they will be jointly and severally liable to the mortgage organization.

According to the general rules, loan debts during a divorce will be divided in proportion to the parts received in the purchased apartment. The difficulty arises due to the fact that not only the debt, but also the real estate entity itself must be divided in equal shares during a divorce. But at the same time, the actual division or sale of the apartment is impossible, since the mortgaged apartment is pledged to the creditor bank. In order to resolve the relevant issue on conditions that are optimal for the parties, the former spouses will be advised to reach an agreement with the bank.

First of all, persons filing for divorce must notify the creditor bank of the upcoming divorce and try to amicably agree on the possibility of dividing the debt or selling the mortgaged property and paying off the debt with the proceeds.

If it is not possible to carry out a voluntary division of credit debt and the issue is being dealt with by the court, the creditor bank is notified of the decision made. It is worth noting that credit organizations include a clause in the mortgage agreement regulating that if the co-borrowing spouses divorce, the agreement on the provision of a mortgage does not change. Accordingly, neither the conclusion of a voluntary settlement agreement nor a court decision will be able to change the original loan agreement.

At the legislative level, there is an option in which the debt can be repaid ahead of schedule with the help of a new loan, taken by one of the spouses or both, but separately.

Procedure

There are two ways to divide debts during a divorce: design property division agreement or file a lawsuit. In the first case, the husband and wife can independently choose the order of delimitation of debt obligations. The main condition is that the settlement agreement must be certified by a notary office, without which the corresponding document will not have legal force and the court will not accept it for consideration. Before certifying the contract, the notary must make sure that its provisions do not infringe on the rights of the other half.

If the former married couple does not agree on the division of debts, it is necessary to draw up a statement of claim and send it to the judicial department.

Despite the fact that the legislation does not have clear rules regarding the division of debt obligations, based on all the information above, we can conclude that it is possible to voluntarily regulate the property rights and obligations of spouses using a marriage contract or an agreement on the division of property.

Important! A divorcing husband and wife should know that when dividing a mortgage, non-payment of the common debt on the loan is followed by foreclosure on the joint property; if it turns out to be insufficient to fully repay the debt after the divorce, then the creditor bank will have the right to claim the personal property of each spouse.

In this article we will look at the issues of dividing the property of spouses, as well as their joint debts. A divorce lawyer answers your questions.

When is the best time to divide property - before the divorce, during the divorce process or after the divorce?

In fact, it does not matter at what time to divide the property. But it is advisable to do this either during the process of divorce or after its termination. This is necessary so that there are no problems with proving the moment of termination of family relationships.

Property is subject to division from a certain period. That is, people stopped running a joint household, there was no longer a common joint budget, and accordingly, from now on, they believe that property should be divided. And so that there are no problems with determining this moment, it is better to do this either after the divorce, when there is already a date for the entry into force of the court decision or a certificate of divorce, or during the divorce process in the same case or in parallel, when the case is being considered in the settlement court

In what ways can property be divided? Is a trial always necessary?

To divide their property, spouses can use several options:

1. Marriage contract. It can be concluded both before marriage and at any time during the marriage. It should be noted that the marriage contract begins to be valid from the moment of state registration of the marriage, if it was concluded before the date of registration of the marriage. The marriage contract is certified by a notary.
2. Property division agreement. This agreement can be concluded both during the marriage and after its dissolution. The agreement must be certified by a notary.
3. Applying to the court with a statement of claim for the division of joint property of the spouses. In court, property is divided either by a court decision or in court a settlement agreement can be concluded, which is approved by the court.

What property is divided and what is not?

Not subject to division:

• property of the spouses acquired before marriage, that is, what was in their personal property before marriage;
• property acquired as a gift or inherited;
• personal items (gold jewelry, fur coats, etc.);
• items of furniture, equipment, household items belonging to the child.

Subject to division movable and immovable property acquired during marriage, regardless of whose money it was purchased with.

I would also like to note that in addition to property, joint debt obligations are also subject to division.

How is the joint property of spouses divided? Is it always equal?

As a general rule, everything acquired during marriage is divided between spouses strictly in 1/2 shares. But if it were that simple, people wouldn’t go to court. Everyone has their own truth.

For example, a spouse can prove that he made a larger contribution to some property or business development. Very often there are situations when men say: “But she didn’t work, she looked after the children!” And I earned money, paid for everything.” But in fact, it is believed that the contribution of spouses to the joint budget is equal.

There are also situations where the share of the spouse with whom the child remains may be increased by the court. Everything is very individual.

The car is most often divided strictly in half. In this case, the property itself remains for the use of one of the spouses, and the second spouse is paid compensation in the amount of 1/2 of the market value of the car.

Another example when the spouse’s share can be increased or fully recognized as belonging to one of the spouses is if the spouse proves that the property was acquired with his personal funds. For example, an apartment that was purchased during marriage was purchased with money received from the sale of an apartment that was inherited.

Are they trying to deceive in court in order to increase their share in the division of property?

Of course, such cases occur in practice. And not rarely.

Gift deeds and receipts are often brought to court to withdraw property from their marital property regime. But these gift agreements and receipts can be challenged and declared invalid. Nowadays, examinations of how old documents have been drawn up and signed have become very popular. But usually, if a person is disingenuous, brings a forged document that does not correspond to reality, and the opposite party says that an examination will be appointed to verify this document, very often such receipts and agreements are taken back. And, as a rule, this is where it all ends.

The court makes its decision not on the basis of one document (receipt or agreement), but on the basis of the totality of all evidence. Sometimes the deception is obvious. For example, when documents appear not at the beginning, but later, during the trial.

Despite the fact that there is criminal liability for providing false documents, in practice the courts do not apply this article and do not punish anyone under criminal law. Therefore, this is actively used, because... There is practically no responsibility.

How is a mortgaged apartment and mortgage debt divided?

A mortgaged apartment is divided in the same way as all property - 1/2 shares.

There are questions in the mortgage section itself.

For example, when 1 spouse is a borrower and the second is not. In this case, the bank is brought to court. He is the 3rd party in the process. But banks do not agree to partition a mortgage loan, since in essence this is a replacement of the person in the obligation. Therefore, by a court decision, it is impossible to oblige the second spouse, who is not the borrower, to pay the mortgage. Payment of the mortgage remains the responsibility of the borrower.

It is better for spouses to agree on a mortgage peacefully.

For example, the borrower is left alone, but in fact two pay. Or if the spouse continues to live in the mortgaged apartment, let him pay.

How are spouses' debts divided?

The common debts of the spouses, as well as property, are divided in half. It is believed that debts are taken out for joint general family needs. Therefore, the general rule applies to debts - in equal shares. These can be debt obligations to individuals, for example, on receipt or loans to banks. However, not all so simple.

Case Study: The spouse admits that there was a debt, the debt was taken. But no bank will split the unpaid debt 50/50. The court cannot make a decision on the division of debt in a situation where the loan is issued to one spouse. Since the court cannot, by its decision, change the terms of the agreement with the bank. In this case, you have the following options: the first is to recover half of the payments already paid from the moment of termination of the marriage and go to court every 3 years with a claim to recover half, the second is to repay the entire loan at a time and also recover half of the paid loan. And the current loan cannot be divided for the reason that there is a 3rd party bank in the case that will never allow this to be done.

How are credits and loans divided that the wife or husband did not know about?

There are cases that a wife or husband can prove that the loan was taken without their knowledge and the money was not spent on the needs of the family. The other side, if it is confident that it is right, must prove the opposite - that the money was spent specifically on general needs.

In general, when people are married, it is understood that both spouses, when using funds from a joint budget, plan it together. And there are situations when, for example, a husband sells a car and claims that his wife knew about this transaction. But my wife says the opposite. In this situation, the judge may side with the spouse, because we have such a concept as “the presumption of consent of the second spouse to the sale of property.” In this situation, the wife needs to prove with concrete evidence that she is unaware of the car purchase and sale transaction and that she still assumed that the car was in her husband’s possession.

Example from a lawyer's practice: The woman had a car. The couple had a disabled child. And the car was purchased for the purpose of transporting the child to hospitals and rehabilitation centers. And the wife was busy driving the child while her husband was working. My husband didn’t even have a driver’s license. That is, he never used a car. The car has always been in the use of the wife. Then their relationship begins to deteriorate and the wife transfers this car to her friend under the sales contract. In this case, the car remains in her use. The husband didn’t even think that she sold it. Then the spouse files a claim for division of property, and the spouse brings the car purchase and sale agreement to court. In court it turned out that the car had been sold for a year already. The spouse, on the advice of a lawyer, performed the following actions: suspended the property division process, filed a new lawsuit in the same court to declare this car purchase and sale transaction invalid (imaginary), resume property division proceedings and divide the car.

Which court should I go to for division of property?

The claim for division of property is “proprietary” and is subject to assessment. Jurisdiction is determined depending on the value of the claim:

• if the value of the claim is less than 50,000 rubles - the statement of claim is filed in the magistrate’s court,
• if the cost of the claim is above 50,000 rubles, the case will be considered by a federal court of general jurisdiction.

Is it possible to combine divorce, alimony, division of property and disputes over children into one statement of claim?

This is a very common question asked by spouses who want to get a divorce. The law does not prohibit combining all claims into one claim.

But in order to save time and make the whole process more structured, it is better to separate these processes. It doesn't have to be done all sequentially.

The only exception is when, along with demands for divorce, demands are also submitted for the collection of alimony for the maintenance of a child who remains living with one of the spouses.

It is better not to combine divorce and division of property into one claim, but to proceed separately. Because the division of property is a rather lengthy process that can take several months.

What documents are needed for the court?

To divide property, you must prepare the following package of documents:

• documents for property that is subject to division,
• certificate of property valuation from an appraisal organization,
• documents that confirm the legal position (donation agreements, receipts, certificate of inheritance, purchase and sale),
• divorce certificate (if any),
• check for payment of state duty.

How does the legal process for the division of property work?

The process of dividing marital property can be very long. Sometimes property is shared even for years. Therefore, it is better not to combine divorce and division of property into one lawsuit. It's better to separate.

Court hearings may be postponed for various reasons. For example, at the request of the parties (to appoint an examination).

The case may also be suspended altogether. For example, in connection with the consideration of an interrelated other case.

It happens that the judge gives time to negotiate the terms of a settlement agreement.

The situations are completely different.

Video

How to divide debt obligations between spouses

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When dividing common property between ex-husbands and the wife very often now comes up with the question of repaying the remaining debt on a loan or credit. There are two difficulties in solving this problem. This is the procedure for determining the total debt and the procedure for agreement with the bank. Judges here are guided by articles of the RF IC, the RF Civil Code, the RF Tax Code, and a number of federal laws and regulations. Of great importance, in particular, are the internal documents of credit institutions, according to which borrowed funds are provided to clients.

General debt obligations

The RF IC determines that in the event of a divorce between spouses in 2020, not only joint property is divided, but also debt obligations. Art. 39 indicates how this distinction occurs: when dividing common property, the court determines the size of the shares that are intended for each of the spouses. The total debt obligation is distributed in accordance with them.

The main problem is the difficulty of determining which debt is considered common. This is because their sources of origin can be completely different. Most debts are a consequence of loan agreements. And their subject-object composition can vary significantly:

• one spouse acts as a borrower and takes funds for his personal needs;
• the borrower is one of the spouses, the loan is issued and spent on general needs;
• the loan is issued to both spouses (or one of them acts as a guarantor);
• the loan is issued to one of the spouses, and the co-borrower is one of the family members, but not the second spouse, etc.

The condition of the loan agreement is joint liability between the borrowers or between the guarantor and the borrower. And such a rule sometimes conflicts with Art. 39 of the RF IC on the distribution of debts according to shares. Therefore, each court decision on such issues is made only after careful study of the opinions of lenders, borrowers and guarantors. If the judge makes a verdict that contradicts the loan agreement in terms of further repayment, the bank can challenge the decision in a higher court.

Let's consider what debt will be common to a husband and wife. The decisive factor in the determination is the purpose for which the loan or credit was issued. If money was taken and spent on the needs of the family, then it is classified as general debt obligations.

If the loan agreement specifies the purpose of purchasing household appliances, furniture, vouchers for a family vacation, etc., then these are joint needs. They should also include paying fees for the education of joint children or purchasing personal property for them.

In 2020, not only a loan agreement, but also sales receipts, vouchers, and the presence of the item itself in family ownership can serve as evidence of the existence of a common debt between spouses.

Personal debt of one of the spouses

When dividing property through the court, only shares in the common property are distributed. This rule also applies to debt during a divorce, i.e. personal debt will not be divided by a court decision.

Some difficulty arose earlier with the definition of personal debt. If it was registered before marriage, it automatically fell into this category. This fact can only be challenged in court, provided that during the marriage the loan was repaid from the general family budget.

But it happens that. Even the purchase of a car can be considered such if the second spouse did not give his consent to receive borrowed funds from the bank. Previously, the burden of providing evidence that the money received was not spent on family needs was placed on the non-borrower spouse who wants to challenge the division of personal debt between spouses in 2020.

However, the Supreme Court of the Russian Federation, making a decision in the case of division of debts, noted that not all debts incurred during marriage are divided in half. Because when dividing property it is necessary to rely on Art. 39 of the RF IC, which establishes the principle of equality of shares, but it does not say anything about debt obligations. The legislation of the Russian Federation provides that each spouse may have their own obligations to creditors. The Supreme Court found that the common debt of the spouses is recognized as such only if a number of conditions are met.

If it is issued to only one of the spouses, then it must be accompanied by circumstances arising from Art. 45 RF IC. It establishes that a debt is declared common if it was taken out and fully spent on the needs of the family. Moreover, the burden of proof falls on the shoulders of the person who wishes to share it. Those. if the borrower is the wife, then in the event of a trial it is she who must prove that the funds were spent on the acquisition of common property of the spouses or other joint needs.

Fictitious debt when dividing property

To reduce the share of the other party in the common property, some unscrupulous spouses use such a prohibited technique as creating a “fictitious debt.” For example, a husband or wife in collusion draws up a loan agreement retroactively, and indicates general needs as the purpose of receipt.

In this case, the injured party will have to act. Firstly, if a fictitious loan agreement is suspected, it is necessary to insist on an examination in order to determine the period of its actual writing. Secondly, an examination of the financial condition of the married couple at the time of the theoretical loan application may be necessary. Thus, the level of income must be determined in order to determine whether the conditions for obtaining a loan are met.

If the creditor is not a banking structure, then it is necessary to establish the existence of a connection between the “lender” and the second spouse.

If the injured party fails to prove that the loan is fictitious, then the division of debts in 2020 will end with the fact that they will have to answer for them with the common property.

How are spouses' debts divided?

If the common debts of the spouses are divided through the court, then three solutions are practiced:

1. The division of joint debt is carried out in proportion to the shares of property distributed between the spouses. Typically, this principle implies equal amounts.
2. When dividing debts, the opinion of banking specialists is taken into account, who give their consent to the distribution of debt between spouses. Thus, the number of borrowers in a monetary obligation may change upward or downward. For example, the second spouse is subsequently excluded from co-borrowers with the payment of funds as compensation.
3. The court, at the insistence of the creditor, makes a decision to refuse to divide the debt obligations of the spouses if there are other co-borrowers under the loan agreement.

Debts that cannot be divided

When dividing debts between spouses, those debts that arose as a result of one spouse receiving a loan will not be taken into account, provided that the second did not act as a co-borrower and did not give his consent to the processing.

Also, if the second party does not claim part of the property acquired with the funds received.

Debts arising after the actual termination are also not subject to division. life together and running a common household by spouses. Even if during the registration period they officially retained the status of husband and wife.

Bank loans section

The fact is that without the approval of the bank, the implementation of the procedure is problematic. Those. the judge, of course, can make a decision, but if it does not satisfy the credit institution, then the latter can easily challenge it.

Should the first spouse be responsible for the personal loans of the second?

YesNo

As a rule, banks insure themselves by initially including in the contract a clause for dividing the debt in the future in case of divorce. He will have to follow the sides. But if there is none, then the following division methods become possible:

• the debt is transferred to one of the spouses;
• then both spouses continue to pay the debt together;
• the loan agreement is restructured, drawing up two accounts. Next, each spouse pays their portion separately.

Statement of claim for division of debts

Each spouse has the right to file a claim in court for the purpose of dividing common property and debts. The claim is drawn up according to the standard rules set out in Art. 131 Code of Civil Procedure of the Russian Federation. It must indicate:

• name of the institution where it is provided;
• basic passport data of the parties;
• the main essence of the claims with reference to existing laws that confirm the validity of the claims;
• approximate calculation of the amount of debt.

The claim must be accompanied by a package of documents that can serve as the basis for the plaintiff’s case, as well as copies of loan agreements and civil passports of both parties.

Evidence supporting debt obligations

It is not difficult to collect evidence for the division of common debts if you initially treat all payment documents with care. It is they, after the loan agreement, which indicates the purpose of the loan, that are the main evidence. The very presence of common property is also such. For example, a couple has new furniture in their apartment, the cost of which does not allow them to be purchased immediately using funds from their shared income. In this case, an analysis of the family’s financial situation will be taken into account as evidence. It is done on the basis of income certificates (2-NDFL, 3-NDFL, etc.).

Counterclaim

The division of debts by spouses through the court may be significantly delayed if additional examinations are needed during the hearing and subject to the filing of a counterclaim by the defendant. A party can do this at any stage of the case. The document is drawn up according to the same rules as the main claim. Most often, the reason for filing is the unwillingness to answer for the personal debt obligations of the second spouse.

Voluntary debt division

To resolve the issue of division of property and debts, spouses do not necessarily have to go to court. If they wish, they can draw up a settlement agreement on division (Article 38 of the RF IC). In this case, the parties themselves can divide the shares in the document in any proportions they wish, if this does not affect the interests of third interested parties. The document must be certified by a notary. It can be drawn up both during the existence of the marriage and after the divorce.

Arbitrage practice

Over the past two years, court decisions on the issue of division of common debts have changed significantly, thanks to clarifications of the RF Supreme Court on the inadmissibility of universal recognition of common liability for loans issued to one spouse.

Now the judge, when considering the case, requires evidence that the funds received from the loan were entirely spent on general family needs.

To divide common debts in 2020, former spouses can resort to the help of a court or reach an amicable agreement among themselves.