Jointly acquired property (including credit) is divided upon divorce in accordance with paragraph 3 of Art. 39 SK RF. Obligations to collect cash, cars, apartments or clothes are subject to division, regardless of who is the main borrower. This is the main interpretation of the law!
In judicial practice, there are a lot of nuances on the basis of which a judge can record a loan payment on one of the former spouses.
Loan provisions
Credit is the personal desire of the owner of material resources to lend them to the needy under certain conditions. Therefore, legislation does not provide concessions to its payment. Even if there are children, you have to give what you take. Mother left alone with the child is provided with alimony from which she can pay her part of the debt.
The creditor and the court will not take into account the fact of non-fulfillment of maintenance obligations, for this there is a different lawsuit and a new provision (Federal Law No. 48-ФЗ dated 7.03.18), according to which the non-payer can be declared missing. This gives the right to apply for an insurance pension for children.
When applying for a loan (more often), both spouses act as co-borrowers and obligations to them are distributed equally. Sometimes one of the spouses becomes a borrower, the other a guarantor!
Fact! Surety, solvency confirmation form of the main borrower for loans. The bank is required to reduce the risk of non-payment. It is the guarantor who is responsible for repaying debts if the one who took the money refuses or cannot fulfill the contractual obligations.
An unpleasant surprise is a secret loan when a wife (husband) takes loans for personal needs during the marriage. The court will have to prove that they were spent exclusively in the interests of the ex-spouse. Until 2016, such debts were considered jointly acquired and were to be divided equally. According to paragraph 3 of Art. Section 5 (dated 04.2016) of the “Judicial Practice Review” clarified that the one on whom the loan is hanging and he advocates for its division must prove that the money (things) went for family-wide needs.
General and personal: the nuances of judicial ethics
In case of divorce, disputes on loans, the court considers on the basis of part 2 of article 45 of the RF IC and a priori divides 50 by 50. But if there is no evidence that the loan was necessary for the family, but spent on the personal needs (things, debt obligations) of one of the spouses, the decision is changed and the one who has taken it has to pay.
For example, the father is trying to prove what is available:
- iPhone
- powerful computer;
- large plasma TV with game console.
All this was secretly taken by him on credit purely for the needs of a child under the age of 2-3 years. For its part, the mother provides evidence that the father hangs for days in Tanchiki and has other debts related to Internet games. Then the court will be skeptical of the plaintiff’s claims and will award the loan to the personal payment of the ex-husband.
Important! Individual debts are not subject to separation, unless one of the spouses is a guarantor, and the loan on loans is past due. The court may recommend the separation of obligations equally, but in case of refusal of the borrower, the surety will pay itself on the basis of an agreement concluded with the bank.
Secret debts - credit card loan, "quick money", receipts from individuals. Until 2016, the decision in the separation court was not the same. The current situation under paragraph 5 of the Review of judicial practice of the Armed Forces of the Russian Federation No. 1 dated 04/13/2016 allows one to prove non-involvement in the debts of the second spouse, they are considered strictly individual and assigned to the borrower. If facts pop up that secret debts were paid off at the expense of the general family budget, you can sue the spent amount in your favor during a divorce.
Legal fact! Based on h. 2 Article. 35 SK RF it is permissible to file a counterclaim and prove that a financial transaction (loan) for general family needs can be carried out only with a written and notarized permission of the second spouse. All other decisions the ex-spouse takes solely and answers accordingly.
What banks and court explain
Based on Part 2 of Art. 39 of the IC of the Russian Federation, a judge has the right to depart from the standard (50%) separation of debts in a divorce. It is possible to reduce the share if children remain with the mother, she is disabled, is in a low-paid position and the amount of alimony is negligible. A reduction in interest on payments can be achieved if one of the spouses has proved that the loan was paid exclusively to them.
In turn, when issuing loans, banks are reinsured and a clause is introduced into the agreement governing loan repayment in the event of a divorce. The application requires:
- written consent of the second spouse;
- draw up a document where the husband (wife) is indicated as a co-borrower;
- act as a guarantor of a loan.
These rules are spelled out in Part 1 of Art. 39 Code of Civil Procedure of the Russian Federation, where the rights of the creditor and the procedure for repayments on the loan are announced. Therefore, when taking voluminous debt obligations, you need to read and study all the nuances of the contract, including providing what will happen if the marriage is divorced.
How to reach a consensus amicably
In court, a divorce takes into account why loans were taken by husband or wife. Based on this, the following decisions can be made:
- Large (target) for housing, transport.
They are divided equally, but if one of the co-borrowers refuses or cannot pay, the acquired property is sold by agreement with the bank and the loan is returned. You can reissue a loan for one of the former spouses, but then the property goes into his personal property and is not divided upon divorce. If the second spouse during the marriage has already paid a certain amount to the account of the debt, he will be given material compensation.
- Cash money.
When taking a loan for family needs, the debts are divided equally. In case of a secret (secret) debt obligation, the court awards a refund to the person who took the loan.
- Consumer obligations.
It is important here what exactly was purchased: home furniture, household appliances or a cell phone for the husband (wife). Things that the whole family uses are considered common, loans for them are divided equally. Children's things (room furniture) are paid either equally, or by the spouse with whom the child will remain.
Important! When repaying a loan, be sure to take a statement from the bank on the full repayment of the loan. There are frequent cases when a debt of several rubles remains, and the bank imposes predatory penalties on them as on an overdue payment.
