Property acquired during marriage is divided in half, unless otherwise provided by the terms of the marriage contract. However, some approach the interpretation of this norm of the RF IC one-sidedly, forgetting that not everything that has appeared in the family during the years of marriage can be considered. For example, an apartment on a military mortgage is not subject to division during a divorce. Let us find out what features exist in determining the rights to such property and what a spouse who has not taken out a mortgage loan can count on.

The main feature of a mortgage loan issued to military personnel is the targeted provision of funds from the state treasury. The essence of the military mortgage is the participation of a serviceman in the system of accumulative mortgage lending (NIS). A special account is opened in his name, where the Ministry of Defense transfers earmarked funds for obtaining a loan. The possibility of participation in the program depends on the date of conclusion of the contract with the serviceman and the length of his service.

The presence or absence of a spouse is not taken into account, therefore, the consent of the "second half" for the transaction is not required. Formally, the second spouse has nothing to do with the deal being concluded.

Participation in the NIS has a number of important features:

1. Only the serviceman himself can conclude a mortgage agreement.
2. It is he who is the owner of the acquired property and is responsible for the return of the TsZHZ (targeted housing loan).
3. It is impossible to re-register real estate received for use under a military mortgage until the debt is paid.
4. Full or partial repayment of debt to a credit institution is carried out from the funds of FGKU "Rosvoenipoteka".
5. In case of early termination of the contract with a serviceman, the mortgage is repaid at the expense of his personal funds, and the amount of the CHL is subject to return to the state.

When issuing a targeted housing loan to a serviceman, the Bank proceeds from the norms of the current legislation and internal rules, according to which a citizen who is married is obliged to obtain the consent of the spouse to conclude a property transaction with collateral. Based on this, the "second half" mistakenly believes that if she signed the documents for a mortgage loan, she can automatically claim any share of the purchased housing. In fact, in this case, the husband/wife of a serviceman only agrees to the transaction, but does not receive rights to the property purchased on a mortgage.

The signing of a mortgage agreement by the spouse of a serviceman does not entail obligations to repay the target loan.

What can the borrower's spouse claim in a divorce?

Since the majority of military personnel in our country are men, when dividing property purchased on the terms of a military mortgage, the rights of the wife, and not the husband, are most often infringed. Having a marriage contract before making a mortgage transaction will help to avoid unpleasant situations during a divorce. If you stipulate in the document the rules for the division of property, then you can avoid unpleasant situations during the divorce process.

However, without a marriage contract, you can claim a share of the value of the mortgaged property. This is possible in the following cases:

1. The cost of housing exceeded the amount received as a CHL when applying for a military mortgage. If the missing funds were added by the spouse of a serviceman, he has the right to demand their return upon divorce. It should be noted that in order to resolve the case in your favor, you must provide documentary evidence of making your share in the purchase. In particular, a 100% reliable argument in the dispute is statements from a personal bank account, from which it is clear that the wife provided part of the money for the purchase.
2. Acquired housing has undergone a major refurbishment, which significantly increased its value. To calculate the share of the second spouse, you can use the services of an independent appraiser who will determine the current value of the property. The valuation act may serve as a basis for claiming the share due. The foregoing fully applies only to a situation where the second spouse can confirm his participation in the re-equipment of the home.

It is worth noting that the implementation of current expenses associated with minor repairs and maintenance of housing does not allow claiming any share of it. Even if it is possible to prove the fact of financial participation in spending, it will be possible to receive only half of the declared amount, since payments were made from the general family budget.

When parents divorce, minors should not be infringed on their rights. The RF IC says that children who stay with a spouse who does not have their own housing cannot be discharged or evicted from an apartment, even if it was purchased at the expense of the CHL. The mother (since in most cases she takes care of the children) in this case also receives immunity and has the right to live with them in a joint living space. Guardianship authorities can protect the rights of children in case of their violation.

How to divide an apartment correctly

As long as the CHL is not paid, there is no talk of housing division. The reasons are obvious: firstly, housing remains pledged to a credit institution until the final settlement of the loan. Secondly, the mortgage is repaid at the expense of budgetary funds, and since the conditions for participation in the NIS are not subject to change, neither the serviceman nor his spouse can initiate amendments to the mortgage agreement.

After paying off the mortgage debt, the housing becomes the property of the spouse who participated in the NIS. Further, all legislative norms relating to the personal property of a citizen apply to real estate.

Accordingly, in the event of a divorce after the payment of the military mortgage, the second spouse can fully exercise his right to a fair division of property.

Arbitrage practice

Legislation regarding the procedure for granting the CHL is spelled out quite clearly. The second spouse has few opportunities to claim part of the property acquired under a military mortgage, therefore, in the event of litigation, the decision is most often made in favor of the borrower. It is believed that in this way the state increases the social security of military personnel.

Only lawsuits filed for the purpose of reimbursement of part of the expenses aimed at arranging and maintaining the property have a judicial perspective. Consideration of an application for the division of property in a divorce proceeding is carried out:

• appointed justices of the peace, if the amount of the claim does not exceed 50 thousand rubles;
• city ​​judges at the place of registration of the defendant - in other cases.

If the property is purchased entirely with a targeted loan, property disputes on it have no judicial prospects.

Separately, it is worth considering the case when housing was purchased at the expense of the CHL, personal funds of the spouses and maternity capital. Judicial practice on this issue is ambiguous. On the one hand, the children of the defender of the Motherland are not members of the NIS, therefore they cannot claim a share of the property acquired in this way. On the other hand, maternity capital is also a targeted state subsidy aimed at providing minors with housing.

In this case, the consideration of the claim will be carried out with the involvement of the guardianship authorities. Moreover, the court must first of all take into account the interests of the child. It is likely that the court will oblige the borrower to reimburse the share of maternity capital due to the child and mother.

Inheritance of housing purchased under a military mortgage

In the event of the death of a serviceman, the procedure for disposing of his property will depend on the fact of repayment of the CHL. If it was not paid, and the apartment was not previously shared, the norms of Art. 12 of the Federal Law of August 20, 2004 No. 117-FZ. According to them, members of the family of a serviceman are recognized:

• husband wife;
• minor children;
• adult children with disabilities;
• military dependents;
• children aged 18-23 who study full-time at universities.

These persons have the right to re-register the CHL in the event of the death / death of a serviceman and rely on the repayment of the loan at the expense of the state.

If the NIS participant has no relatives, other relatives may enter into inheritance rights. In this case, they will have to repay the remaining loan obligations on their own.

In the event of repayment of the TsZHZ, the encumbrance on real estate purchased under a military mortgage is removed. Then the housing is inherited in the generally established order.

Military personnel are a separate category of civil servants. Military service is characterized by special conditions associated with a special risk to life and health, constant stressful situations, frequent movements of a soldier across the territory of the state and beyond, caused by the requirements of the military situation.

These factors cause the need to provide them with increased social guarantees from the state. A military mortgage during a divorce, which is not affected by the norms of family and civil law, to some extent compensates for the inconvenience and deprivation of military service.

One of these benefits is the specific protection of military personnel (primarily their property) from the claims of third parties. If it is fair in relation to persons who are not related to a soldier, then members of his family perceive such protection with incomprehension and often serve as the subject of litigation.

What is a military mortgage

Mortgage is a long-term housing loan with the transfer of housing (apartment) as a pledge to the creditor until the debt is fully repaid, a widespread form of acquiring primary housing or improving housing conditions.

It is subject to all the provisions on the community of property of the spouses. In the event of a divorce, the mortgage apartment is divided in half (unless otherwise stipulated in the marriage contract).

Things are completely different with military mortgages. In this case, we are talking about funds (target loan) which, in accordance with part 2 of article 34 of the RF IC, are not jointly acquired property. The principle of acquiring housing remains, but the payer on the loan is not the military man himself (who is obliged to be a member of the NIS for 3 years), but the Ministry of Defense (Ministry of Defense) of the Russian Federation, which allocates funds for the purchase of housing and is the payer on the loan. A serviceman does not invest a single ruble of his own funds if the cost of the apartment fits into the maximum possible amount - 2 million 400 thousand rubles in 2017 and 2018.

The difference between a military mortgage and an ordinary mortgage is that the apartment is pledged not only to the creditor bank, but, at the same time, to the RF Ministry of Defense. There can be no division of the acquired apartment.

As long as a soldier is in the service, he is a party to a tripartite agreement. In case of dismissal from the service on their own initiative or due to discrediting circumstances, the contract is re-executed. The Ministry of Defense relieves itself of the obligation to repay the loan and transfers it to the former soldier. From now on, the burden of payments falls entirely on him, at the same time there is a loss of the status of the inviolability of property, from the claims of third parties.

Is it possible to divide an apartment with a military mortgage

The answer to this question is twofold.

If a serviceman dissolves his marriage with his ex-wife, but continues to be in the service, then there is no question of the possibility of dividing the military mortgage. Judicial practice unequivocally refuses military spouses who filed claims for the division of military mortgages.

But there are cases when a spouse can claim, if not for half of the property (apartment), then for payment of compensation (part of its value).

In what cases is it possible

First option if the cost of an apartment on a military mortgage exceeded 2.4 million rubles and the serviceman was forced to invest additional funds. Funds received by a serviceman as a monetary allowance are the joint property of the spouses. Thus, the wife/husband of the serviceman(s), in the event of a divorce, can claim half of the funds contributed as an additional payment.

Second option when the court can satisfy the requirements - the dismissal of a serviceman from service. If by this time the mortgage has not been paid in full, the obligation to pay it is transferred from the Ministry of Defense of the Russian Federation to the retired person, and the funds with which he will repay the loan are the family's joint property (salary, dividends, other sources of income). In this case, the former spouse, who was officially married, has the right to demand payment of half of the value of the contributed funds from the moment the payments to the Moscow Region end.

Military mortgage in case of divorce of spouses with a child

When applying for a military mortgage, the divorce of spouses with children is the third option - when an apartment is purchased in excess of the maximum loan amount allocated by the Moscow Region (2.4 million rubles) and maternity capital was used to pay off the difference in price. For a soldier, this is the most losing option.

The fact is that in this case there is a conflict of rules of law. In such an apartment, both spouses are persons who contributed targeted cash receipts to its acquisition: a military man - funds from a military mortgage, his wife - maternity capital funds.

Neither one nor the other does not apply to the joint property of the spouses. But the legislation on maternity capital provides for the mandatory registration of housing acquired with its participation in the joint ownership of all family members, including children. The court has no right to ignore this provision of the law and is forced to divide the apartment in kind (if possible) or oblige the serviceman to pay compensation.

The second conflict is that children who have acquired ownership of housing purchased with the participation of maternity capital cannot under any circumstances be deprived of their ownership of it. The share of their property in the cost of the apartment will not be equal to a percentage of the surcharge, but the part that comes from dividing the apartment by the number of family members. If there are 4 family members, then each child has the right to claim a 1/4 share of the apartment.

Nuances of a military mortgage

The question of the division of the apartment or the payment of compensation can only come when the loan is fully repaid. Until then, the mortgagee of the apartment is the creditor bank and the RF Ministry of Defense. The courts simply will not accept a claim for the division of property that does not fully belong to the former spouse.

Therefore, before filing a claim, the spouse will have to wait. Sometimes a couple of decades.

Arbitrage practice

In order for a lawsuit filed for a share in an apartment purchased on a military mortgage to be effective, the former spouse (gu), who believes that the property was bought with her participation, must be carefully documented and presented to the court as evidence all financial documents indicating that as she participated in additional payments or repayment of installments on the loan with her own funds (belonging to her personally, received by inheritance, as a gift, won in the lottery).

Or to prove that the money that is the joint property of the spouses was used as an additional payment. This is especially true for women who are the wives of a military man during the period of payment of the additional payment (initial contribution), who are on maternity leave and caring for a child under 3 years old.

During this period of time, women are unable to work and usually do not have their own source of income. But this does not mean that they lose the right to claim part of the apartment (payment of compensation). The funds received by the husband as a monetary allowance are jointly acquired property and are subject to equal division.

Difficulties in collecting evidence, the intricacies of the legal subtleties of military, civil, family and banking law force them to turn to professional lawyers (lawyers) to represent their interests in court.

In most cases, the courts take the side of the serviceman and do not divide the apartment between the spouses, if it was purchased under the NIS program.

Or by inheritance. This rule is valid for both income items and expenses. But, with regard to targeted state financing programs for the purchase of real estate, this rule does not apply, namely to military mortgages, given the fact that loan contributions are made not from the family budget, but from the NIS - the military savings fund system for the implementation of preferential programs for employees. Therefore, here the property goes to the one to whom it is recorded, that is, to the soldier.

The only case when the second spouse can claim a share in the property section received under the military state program is his participation in the repayment of loan payments or if the down payment included common family financial resources. In order to more accurately understand the intricacies of the section of the military mortgage, we will consider the most common cases of judicial practice, as well as the mandatory conditions for divorce, in the presence of a housing loan issued under the military program.

A military mortgage is a loan for housing, which is issued with the support of the state for military personnel on favorable terms. The main limitation under which you may be denied a military mortgage is the participation of a military member for less than three years in the NIS. In the accumulative mortgage system, targeted funds are being accumulated during that time, which will be used to implement military mortgages. Since this is a state program, the rate on it will also be underestimated - no more than 12%, and the area of ​​\u200b\u200bthe apartment, its location, the term and calculation scheme of accrued interest depends on the preferences of the borrower, the main thing is that the amount does not exceed 2.4 million rubles. Otherwise, you will have to raise your own funds.

Has a double burden. Firstly, the Department of Defense helps to pay off the mortgage from the federal budget as long as one of the spouses works in the public service, and secondly, the apartment or house acts as collateral for the loan, to guarantee the full payment of borrowed funds to the bank. That is, the serviceman becomes the full owner after the full repayment of obligations to the bank, and given that for the time of work the payment comes from the targeted funds of the state, then the division of property between spouses has its own difficulties, since this property cannot be fully attributed to jointly acquired property .

A mortgage agreement drawn up under the terms of the state program for military service workers can only be concluded in the name of a military serviceman and is not subject to re-registration to another owner.

Is an apartment subject to division under a military mortgage?

If we turn to Article 256 of the Civil Code of the Russian Federation, which states that the acquired property, regardless of which of the spouses earned more, is considered joint property and is divided in half after a divorce. But, in article 34 of the Family Code, you can find an amendment that states that state cash payments for the implementation of preferential programs are not included in this item of expenses or income. Therefore, if the deductions from the NIS fully covered the cost of the apartment, then after the divorce it will belong to the one to whom the property is registered, that is, to the military man.

But there are a number of facts that can attract a second spouse to the division of an apartment received as a result of a military mortgage. So let's look at each individual case:

If the funds allocated by the state were not enough for the full cost of the apartment

In 2017, if you fall under the program for obtaining a military mortgage, then the state allocates 2.4 million rubles. to buy a home mortgage. This amount will be distributed over the entire term of the loan agreement, in the form of monthly payments from the savings fund, while the serviceman is working. Considering the fact that spacious apartments in regional cities today are much more expensive, not to mention their own house or construction, the family can use family savings, from which they will pay the difference in the cost of an apartment minus the money allocated by the state. Since family funds are jointly acquired property, the second spouse claims them equally. This difference is divided according to the law of 50 to 50, or in proportion to the amount invested by each, if he can confirm this.

If maternity capital was used for the down payment or repayment of the total debt

Therefore, in the section of this invested amount, the mother and children participate.

If the serviceman quit before the end of the loan agreement

When a serviceman is dismissed, the state stops making contributions to the NIS, where the funds come from to pay off monthly payments, so the borrower is obliged to close the military mortgage on his own. If at this moment he is married, then the mortgage will actually be repaid at the expense of jointly acquired funds.

If family funds are invested in the apartment for repairs

This fact must also be taken into account, since if the housing is completely transferred to the spouse, then no one will return the wallpaper that she bought during the renovation of the new apartment to the wife. Therefore, the court must take into account such expenses, and at the time of making a decision in favor of the spouse, indicate that he must compensate her material expenses in proportion to the funds spent.

As judicial practice shows, most often the court takes the side of the defendant, that is, the military man. The property claims of the second spouse to participate in the share of the mortgage received under the military preferential program are rejected in almost 95% of cases. It is possible to divide mortgage housing only after full repayment, at the discretion of the spouse himself, that is, peacefully. But in order for the second party to prove the fact of participation in the payment of a mortgage loan, it is necessary to collect weighty evidence, or rather, certified documents with exact amounts.

How is the military mortgage divided?

Following from the foregoing, the apartment, which was inherited as a result of a military mortgage, is not subject to division, since the funds spent on it do not belong to the family budget. That is, the owner is one - a soldier, during marriage and after a divorce. But, there are a number of cases that we considered earlier, that the second spouse, under certain conditions, can count on a part of the compensation proportional to the money invested, for example, for repairs, for making a down payment, for using maternity capital when covering the loan amount exceeding state aid. But if the apartment was sold at the time of the official marriage, then these funds will be considered as jointly acquired property, and therefore should be divided according to the law on a general basis.

If there are minor children in the family

Very often the issue of division of property is exacerbated due to the presence of minor children in the family. And, despite the fact that the judiciary is trying to protect their interests as much as possible, when dividing a military mortgage, the presence of minor children is not reflected in any way, regardless of who the child remains with after the divorce. This is explained by the same reason as in all other cases - the apartment was purchased for targeted public funds, in order to provide the best housing for a particular soldier, regardless of whether he is married and whether he has children.

A military mortgage is not an obstacle to the division of property during the divorce proceedings, even if the owner of the apartment did not pay contributions on it.

Utility bills

Debts, like property, are not divided after a divorce. If there is a debt for utility bills, then it falls on the "shoulders" of the owner, regardless of who lived or is registered in the apartment.

Informing the bank

If the loan agreement has not expired and the military mortgage is in force, then a change in the status of the borrower requires notification to the bank to change personal data so that there are no problems with repayment. Any bank agreement contains a clause stating that the borrower is obliged to report a change in personal data, otherwise the bank may require early termination of the military mortgage agreement, since in a divorce proceeding, the court may decide in favor of another spouse or partial division of real estate. Therefore, the bank is also concerned about this situation and requires official confirmation.

When the division of an apartment on a military mortgage is impossible

The apartment is not subject to division with the second spouse or children during a divorce if the housing is fully paid for by public funds, namely, these are the money from which the mortgage of military personnel, issued under a preferential program, is paid. That is why only the military is the sole owner of it, and it is impossible to divide it on the court claim of the second spouse.

Division problems

The first question that interests any soldier is what problems he may encounter in the process of dividing a military mortgage. Since we have already said that in most cases housing is indivisible and remains the property of a serviceman, problems can arise only if the court decides to share the apartment proportionally with the second spouse, if he participates in the payment or invested money in housing. If the court makes such a decision, then the section implies the share of the second party in the property rights to the apartment. It is possible to resolve this conflict by reimbursement of monetary compensation to the second spouse and remain with full ownership rights. And if he is against, then the bank may demand early repayment of the loan or the sale of collateral, since the apartment can be divided only after the mortgage agreement is closed.

Judicial practice of real estate division under military mortgage

To file a claim for the division of acquired property, including a military mortgage, you must apply to the judicial authority with the appropriate application and original documents. In order to more thoroughly familiarize yourself with the various options for dividing housing received under the military mortgage program, consider the following subtleties of judicial practice:

1. The issue of property rights to real estate of two spouses can be raised only after the final repayment of the loan, since two types of obligations are imposed on the property.
2. If the second spouse files a claim for the division of an apartment issued under a preferential program for the military, that he invested his funds in its repayment or repair, then it is necessary to provide appropriate confirmation - checks, receipts, payment internal bank documents, account statement. The more and more convincing the evidence, the greater the chance that the court will take the side of the plaintiff.
3. Sometimes in judicial practice there were cases when mitigating circumstances in the division of property were the number of years lived together, the presence of minor children and the absence of another living space where a spouse and children could move after a divorce.
4. If the funds allocated as maternity capital participated in the total cost of the apartment, then the spouse can safely file a claim for the division of property in proportion to the invested funds for each family member.
5. If the spouses signed the prenuptial agreement (and this is sometimes required by banks to avoid subsequent problems with the mortgage), then the court must fully take into account the terms of the agreement.

In the end, I would like to say that a military mortgage is not a housing loan on favorable terms from the state for families who cannot purchase an apartment on their own. A military mortgage is a program to support military personnel, whether they are married or not. In addition, this program not only allocates funds to a serviceman, but also protects his interests from infringement on the property rights of third parties. On the one hand, for a wife who was on maternity leave and could not earn a full-time income, this may seem absurd, and on the other hand, the state takes into account the complexity and risk of a serviceman's work and tries to protect him as much as possible at the legislative level. Otherwise, the military may peacefully, by his own decision, sell and divide the apartment.

One of the largest subsidizing companies is the military mortgage - at the moment it allows you to purchase housing with state support.

Military personnel and other civil servants may use NIS funds when applying for a mortgage loan. But often there are difficulties in the implementation of the division of property in the event of a divorce.

Is it possible to split

The main feature of the military mortgage is that it only relates to a person who is directly registered in the system.

Cumulative mortgage lending. A special account is created, to which a certain amount of money is credited. Over time, these funds are gradually indexed.

This amount has nothing to do with the following events:

• registration or dissolution of marriage;
• the appearance of children and more.

It is for this reason that the procedure for dividing real estate, housing, if it is purchased at the expense of the Accumulative Mortgage System (it does not matter - in a mortgage or with own funds) has important, significant differences from the standard algorithm.

It is important to remember that the military mortgage transaction process does not involve a husband or wife.

There is always only one person involved in a contract. At the same time, the spouse of a serviceman does not have any obligations to return targeted funds.

Before proceeding with the division of real estate, it will be necessary to familiarize yourself with the following important points:

• only the serviceman himself participating in the NIS has the right to conclude this type of contract;
• the serviceman is also the owner of the housing acquired in this way;
• there is no right to carry out the procedure for re-registration of housing even if the division of an apartment acquired under a military mortgage must be carried out.

Military mortgage implies that the repayment of the debt to the bank is fully or partially carried out by the Federal State Institution Rosvoinipoteka.

For this reason, often the bank, before concluding this kind of mortgage loan agreement, puts the need to conclude a marriage contract as one of the conditions.

In which case the apartment remains to the spouse of a serviceman

At the moment, in fact, the right to own real estate passes to a soldier who has used the funds of the Accumulative Mortgage System only after the expiration of the mortgage agreement, after the full repayment of the loan.

Only from this moment the right to housing between spouses is equalized. But at the same time, one should remember about quite significant nuances.

Currently, the maximum limit for mortgage lending ranges from 2.2 million rubles to 2.35 million rubles. The legislation allows, in addition to these funds, to also report your own.

Often the total cost of the apartment significantly exceeds the amount indicated above. But at the same time, it should be remembered that it is precisely this excess amount (2.3 million rubles) that the spouse of a serviceman is entitled to.

Regardless of the date of marriage, as well as various other factors, the funds of the accumulative mortgage system remain with the serviceman.

They are not subject to division even if the housing under the NIS was acquired in the course of a valid marriage.

There are a large number of very different nuances directly related to the process of division of property in this case.

If possible, they should be studied in advance, before the start of the divorce proceedings. This will avoid a lot of hassle.

How is the division of the apartment

With the exception of the points indicated above regarding the amount of NIS, the procedure for dividing housing in the event of a divorce is carried out in a completely standard way.

At the same time, the Family Code of the Russian Federation establishes a certain number of special points, which must be taken into account without fail.

These include the following:

At the same time, it sometimes happens that it is necessary to carry out the division of an apartment, which for some reason is not subject to division.

Such situations are usually resolved as follows:

• general agreements were reached peacefully, a special marriage contract was drawn up;
• husband and wife, again by prior arrangement, sold common real estate and each purchased separate apartments for themselves;
• the apartment was divided physically - two separate entrances were made, a wall was installed between the halves.

The best solution in case there is a divorce and it is required to carry out the division of real estate is a voluntary agreement.

In this case, the best solution is to draw up an agreement with a qualified lawyer.

It should also be notarized. Subsequently, this will give the appropriate legal force to this document. The agreement should establish the procedure for the implementation of the division of the apartment.

With the help of the procedure for drawing up an agreement, it is possible to carry out the following:

• sell joint housing and then divide the money in equal or other shares;
• leave the apartment to one of the spouses - the rest of the jointly acquired property passes to the other.

In fact, parents have the right, at their own discretion, to independently establish almost any order for the division of real estate.

It is only important to take into account that in the implementation of this procedure it is required to take into account the interests of minor children.

One of the priorities of the work of state judicial bodies is to protect the interests of this category of citizens.

The most difficult procedure for dividing an apartment is litigation. But in many cases, this is the only possible way out for spouses.

In accordance with the RF IC, all property, with the exception of a small list, acquired by spouses in marriage is jointly acquired. Therefore, it should be divided in the ratio of 50% to 50%.

At the same time, there are circumstances in which one of the spouses has the right to claim a share in the apartment of more than 50%.

These situations include the following:

• if there is a situation where one of the spouses did not receive income for a long time for a disrespectful reason - disability, housekeeping and raising common children are not recognized as disrespectful reasons;
• if, after a divorce, common children remain to live with one of the parents;
• the second spouse, for some reason, spent his budget not rationally, to the detriment of his own family.

Arbitrage practice

In the absence of experience in the conduct of such cases, it is necessary to familiarize yourself with judicial practice. This will help you avoid the most common mistakes.

Example. Married servicemen purchased an apartment worth 4.5 million rubles. The amount of funds used by NIS amounted to 2.3 million rubles. After 4 years of marriage, the couple decided to divorce.

Since the wife worked, there are no grounds for refusing to divide the property 50% by 50%, then the property, with the exception of NIS funds, must be divided in half. The situation is similar with an apartment worth 4.5 million rubles.

For some reason, the spouses failed to reach a peace agreement. That's why there was a lawsuit.

In accordance with the current legislation on NIS, the amount of 2.3 million rubles is deducted from the amount of real estate worth 4.5 million rubles. Thus, 2.2 million rubles of the remaining used own funds are subject to division.

As a result, with the help of the court, it was possible to conclude an agreement under which the serviceman paid 1.1 million rubles from his own funds to his wife - the apartment completely remained with him.

The above example is completely typical. If housing was purchased with the participation of NIS funds, then the resolution of court cases is carried out in this way.

Military mortgage in case of divorce of spouses with children

One of the priorities of the work of the judiciary is the protection of the interests of minors.

That is why sometimes there are difficulties in the implementation of the division of real estate acquired with the funds of the Accumulative Mortgage System, if there are children in marriage.

First of all, the court protects the interests of the child. But again, NIS funds are targeted and are intended to ensure the living conditions of a particular soldier.

That is why, even if, as a result of the trial, it is found that most of the property should go to the wife due to the fact that the child remains with her, the NIS funds cannot be divided.

If you have any questions, you should definitely seek the advice of a qualified lawyer.

Do I need to notify the bank of a divorce?

Often spouses are co-borrowers on a mortgage loan. That is why, if there is a termination of their marriage, it is necessary to notify the bank. This moment has some nuances.

In the legislation, such obligations are not indicated in any way. At the same time, it should be remembered that in almost all cases without exception, if the loan agreement is simultaneously executed for both spouses, the clause regarding such notification is included directly in the agreement.

Nuances

One of the most important nuances that arise with military mortgages in marriage is the marriage contract. In accordance with such an agreement, it is possible to establish a process different from the standard division of property.

But at the same time, the marriage contract should not violate the federal legislation in force on the territory of the Russian Federation. Otherwise, it may simply be invalidated.

The accumulative mortgage system allows you to purchase real estate quickly and with less difficulty.

But it should be remembered that this process is associated with certain nuances and difficulties if the serviceman is married. All legal subtleties should be dealt with in advance.

Video: Military mortgage, apartment purchase scheme

Jointly acquired property during a divorce is divided between the spouses, and this is no secret to anyone. However, if the property was acquired on a mortgage, then there are some peculiarities.

Moreover, mortgage lending can be carried out by different programs and types. In particular, the legislation provides for a separate mortgage for military personnel. Accordingly, the division of an apartment under a military mortgage has its own nuances.

How is the division of property under a military mortgage in the event of a divorce received by a husband a military man? What are the rules and what should I pay attention to? Read our article.

In this article:

Divorce of a military family and division of mortgage housing

The whole procedure will depend on the conditions under which the mortgage was issued. If a serviceman during the period of marriage took out a loan under a regular banking program, then the apartment is divided as standard - 50 to 50.

At the same time, the military mortgage program has its own characteristics.

The thing is that a housing loan is formed from several sources for military personnel participating in the accumulative mortgage system (NIS). Part of the payments are financed by the state.

In addition, a certain share of the serviceman's pension contributions is also used to pay off the mortgage.

There is now conflicting jurisprudence regarding the division of real estate in a divorce obtained under the terms of a military mortgage.

Some judges believe that the mortgage loan is repaid at the expense of targeted funds. And if so, then real estate is not part of the common property (part 2 of article 34 of the Family Code of the Russian Federation).

However, now court decisions have already begun to appear, which indicate that the mortgage apartment is divided in the usual manner.

Special conditions for a military mortgage in case of divorce of spouses

First, let's understand what a military mortgage is.

This is a special program for military personnel. And only the military of the Russian Federation can participate in it.

According to it, part of the payments is compensated by the state, while the serviceman opens a special account, where subsidies are received.

True, those persons who have been participating in the mortgage program for at least three years can count on state support. At the same time, the amount of assistance from the state is a little less than two million rubles.

As we have already said, in the event of a divorce of spouses, problems may arise when dividing a mortgage apartment.

If the court decides to divide the property in half, then the soldier will still have to repay the military mortgage, since he is a participant in the NIS. In this case, he is entitled to compensation from the former spouse in part of the paid loan.

In a word, during a divorce, you need to study and anticipate all options for the development of events and, if possible, consult with a lawyer.

Based on the legislation, available documents and the latest judicial practice, he will tell you how to proceed correctly.

Difficulties in the division of property under a military mortgage, and what will the creditor bank say

Do not forget that the bank is directly involved in the military mortgage program.

Therefore, the division of an apartment received under a military mortgage must take place with the consent of a financial institution. Moreover, in the forthcoming litigation, the bank will take part in the role of a third party.

Before dividing an apartment purchased under a military mortgage during a divorce, you should study the loan agreement. Most banks already prescribe instructions in loan agreements on how to act in such situations.

Typically, the payment of a loan in a divorce is distributed between the spouses in equal shares. However, military mortgages are a special case. And after the dissolution of the marriage, the military will pay the mortgage.

But, as we have already said, he can legally demand compensation from his wife.

It also happens that some banks require early repayment of the loan during a divorce. And the motivation is very simple - divorce reduces the guarantee of repayment of a mortgage loan.

How to divide property under a military mortgage according to the law

Each of the spouses is probably interested in how to divide housing under a military mortgage according to the law. Here it is necessary to take into account the existing jurisprudence.

Speaking on the basis of the position of the law, the principle of dividing an apartment taken on a military mortgage is that housing remains at the disposal of the soldier who has issued a mortgage.

Recently, courts have increasingly ruled that a mortgaged apartment is not considered personal property of a serviceman. And if so, then the court can quite easily divide it in half.

It is also possible that other proportions may be awarded.

For example, this happens when small children stay in the apartment. Then the decision can be made in the ratio of 40 to 60 or even 30 to 70. However, each situation is individual.

The court may also award monetary compensation to the second spouse if part of the loan was repaid at his own expense. The same goes for repair costs. But in any case, all expenses must be documented.

Note to future/current NIS participants and their other halves: 5 rules you need to know

Here are 5 basic rules to consider when deciding whether to apply for a military mortgage. Extra knowledge will never hurt, as the saying goes "ignorance of the law does not exempt from responsibility."

In our situation, we mean civil liability, and in fact financial risks, you see, no one wants to be left with nothing after a divorce.

1. Achieving the required length of service

Now the accumulative mortgage system does not work for everyone. To become a member of the NIS, you must serve in different troops for a certain time. Usually it's three years.

2. Choosing the right bank

Today, various financial institutions participate in the military mortgage program. Each of them offers its own mortgage programs.

They differ in the term for which the mortgage is granted and in the interest rate. Therefore, you should make a choice among several offers.

3. Study of judicial precedents

We have already said that the judicial practice of the division of military mortgages is rather contradictory. Therefore, before dividing a military mortgage, one should study not only the legislation, but also court decisions, including clarifications from the Supreme Court.

4. Legislative monitoring

Regulatory documents in the field of military mortgage periodically undergo important changes. In order not to miss anything, it is advisable to periodically study the news and legal information.

5. Help from a lawyer

In some cases, it is not easy to resolve the issue of dividing a mortgage apartment received by a serviceman. A way out of the situation can be found by contacting a specialist for help.

We have described 5 basic rules that are useful to follow when applying for a military mortgage or using it for some time.

Frequently asked questions about the division of an apartment purchased under a military mortgage

Below we have collected answers to the most frequently asked questions in the field of mortgages for military personnel. They are asked by both the borrowers themselves and their spouses.

How and who can divide property in a divorce

Naturally, after a divorce, spouses cannot always dispose of their property as they want. And usually this happens with the help of the court.

However, the issue of property can be resolved peacefully. To do this, a notary draws up a marriage contract or an agreement on the division of property.

Is an apartment subject to division under a military mortgage?

If you literally follow the Family Code and the law on military mortgages, then we can conclude that this housing is not subject to division.

However, more and more often, the courts of different regions make opposite decisions, dividing the mortgage apartment between the spouses.

Therefore, the ambiguity of judicial practice is widely used by both the owner of the mortgage and the second spouse, who intends to receive part of the apartment for himself as a result of the proceedings.

Is an apartment bought with a military mortgage a common property?

If we proceed from the fact that the funds allocated by the state for military mortgages are targeted, then we can conclude that mortgage housing is not common property.

In this regard, an analogy can be made with maternity capital. Real estate purchased with his funds is also not recognized as common.

Are there circumstances in which the spouse of a military member is entitled to housing

This happens when the court decides to divide the apartment. Otherwise, the spouse has very little chance of claiming housing (unless a separate clause is written in the marriage contract).

However, the spouse (wife) can count on monetary compensation, provided that they paid off part of the loan or paid for repairs in the apartment.

To do this, bank receipts should be submitted to the court indicating the payer, as well as checks or acts for the purchase of materials or payment for the work of the construction team.

Should I notify the bank of my divorce?

Some unscrupulous borrowers are unwilling to notify the bank of changes in their own marital status. Let's just say that you shouldn't do this.

Thus, serious sanctions may follow for misleading a bank. It is possible that a financial institution may try to take the apartment.

Do not forget that the bank may put forward a requirement to repay the loan ahead of schedule, and in one payment. Therefore, it is better to follow all the rules prescribed in the mortgage agreement.

When a wife can claim a share of an apartment in a military mortgage

This happens when the court considers that the disputed property still belongs to the joint. Then the judge will also decide in what proportion the disputed apartment should be divided.

A wife can apply for mortgage housing even if the corresponding rights of the spouse are enshrined in the marriage contract.

What are the difficulties

There are several potential difficulties.

First of all, this is an ambiguous judicial practice in determining the legal regime of an apartment in the joint property of a family. And the possibility and procedure for dividing a mortgage apartment directly depends on this.

Further, the difficulties in dividing an apartment in a military mortgage may be related to the content of the relationship. It is possible that in connection with the divorce, the bank will put the borrower with additional conditions for servicing the mortgage.

The presence of common minor children can also leave its mark. After all, under no circumstances should they be left homeless.

In a word, it is best to understand all the nuances of a military mortgage in cooperation with a lawyer. The lawyer will provide all the necessary legal support to both the soldier and his other half.