Division of debts and credit obligations during divorce

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When dividing common property between ex-husband and wife, the question of repaying the remaining debt on a loan or credit now very often comes up. 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 2021, not only joint property, but also debt obligations will be divided. 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 2021, 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.

How is mortgage debt divided in a divorce?

If there are no disputes between the couple, and they agree to voluntarily share the burden of responsibility, then the following scenarios are possible:

the loan agreement is reissued for one of the family members, subsequently the entire payment falls on his shoulders, as well as the complete transfer of ownership of the apartment;
with the consent of the creditor, the obligations of the parties are distributed proportionally depending on the preliminary agreement, for example, in half, or the spouse is allocated one third, the rest will be paid by the second half.

Once again we would like to draw attention to an important condition - all renewals of contractual loan obligations must be approved by the lender! That is, it is not possible to change or cancel credit conditions, but redistribution of debt obligations is allowed.

All agreements should be drawn up in writing and certified by a notary office; only after that they can be recognized as legally significant for the creditor.

If, due to some circumstances known only to the bank, it does not agree to reissue the loan agreement, then you can seek judicial protection and file a claim to recognize the agreement as an addition to the main mortgage lending agreement. If the court makes a positive decision, the creditor does not have the right to refuse to redistribute payment responsibilities in accordance with the agreement. Consult for free by phone, a professional lawyer will tell you how to correctly arrange the division of property after a divorce.

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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 a loan is issued only by one of the spouses for personal needs. 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 2021.

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.

Court decisions

How to reduce the amount of alimony and divide property during a divorce
Divorce: how to divide property so that everyone is happy

Divorce and all the ensuing consequences: what difficulties may arise during the divorce process?

When dividing property, the court left the wife an apartment purchased during marriage

Divorce proceedings: How to bring ex-spouses to a settlement agreement

How to return an illegally sold apartment

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.

What is fictitious debt and how is it distributed between spouses during a divorce?

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 2021 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:

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.
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.
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, debts on loans issued before marriage are not divided if the other party does not claim part of the property acquired with the funds received.

Also, debts arising after the actual termination of joint life and management of a common household by spouses are not subject to division. Even if during the registration period they officially retained the status of husband and wife.

Consequences of dividing spouses' debts

The distribution of the joint debts of the spouses is made in proportion to the spouses' share in the acquired property, i.e. if the spouse, after the division of the jointly acquired property, owns 50% of the property, then she will pay 50% of the debt. The division is carried out by a court decision, but it is also possible to achieve a peaceful procedure - to conclude a settlement agreement when dividing the spouses’ property and debts in order to resolve the dispute at an early stage.

Positive aspects of the issue of division of debt obligations of spouses :

reducing the financial burden of both spouses;
avoiding the situation of loss of property due to the debts of the second spouse;
division of the spouses' mortgage debt;
preventing the occurrence of sanctions on the part of collectors (interest, penalties, etc.).

Bank loans section

The difficulty of dividing general debts on bank loans is that without the approval of the bank, 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?

Not really

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.

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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.

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 2021, former spouses can resort to the help of a court or reach an amicable agreement among themselves.

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