Statement of claim for division of a joint loan of spouses. In case of divorce, how are loans divided?

Modern reality dictates new conditions for financial relations between citizens and credit institutions. Most families use credit cards, enter into loan agreements with banking institutions, and buy real estate, vehicles and expensive household appliances on credit.

It’s good if the family is happy, the loans are repaid safely through joint efforts, but what if there is a divorce and division of property? Often, by the time a relationship breaks up, a couple still has loans, and then they have to divide not only property, but also debts. Sometimes ex-spouses come to an agreement, but more often a divorce is followed by a lengthy showdown about who gets what and who should pay off the remaining loan.

How to divide a loan when dividing property

If the spouses separate, then it is often possible to divide the jointly acquired property somehow, but the division of debt obligations confuses opponents, and they have to resort to division through the courts.

The division of credit debt between former spouses can be submitted to a separate claim or combined with a claim for division of property; preparing a double claim is not much more difficult than two different ones, and it will be possible to immediately resolve two issues - to divide both property and debts. Of course, it will be necessary to clearly formulate all the requirements for the defendant and support them with all available evidence.

But first you will need to decide whether this loan obligation is subject to division.

Is credit divided in divorce?

If, while married, the spouses entered into a lending agreement with any credit institution for two, then in the vast majority of cases, the division of the debt in accordance with the RF IC will also occur equally, as well as jointly acquired property. But, as in any other regulatory documents, there are exceptions in the family code: not in all situations loans are divided in equal parts.

For example, the former spouses of L. bought a car on credit, and upon division it remains with the husband. The court will not divide the outstanding debt for the car in half, but will award it in full to the husband, since it is he who receives the vehicle upon division. Moreover, the court will decide on payment of compensation ex-wife, who participated in repaying the debt during the period they lived together.

In addition, when dividing debts, a third party is often a credit institution, which has its own requirements for spouses divorcing and dividing property and debts.

The bank may prohibit the division of the loan if during this procedure there is even the slightest likelihood of delays in repaying the loan.

Can all loans be divided?

During a divorce, you can only divide a joint loan (taken for two) or one from which the funds were spent jointly, for common needs, personal loan obligations, that is, those that were issued for the purchase of personal property of one of the spouses or were issued before marriage, it won't be possible to divide.

For example, a wife took out a loan for herself to purchase expensive jewelry. This jewelry is her personal property and during a divorce she will not be able to divide such a loan.

The following loans are subject to division in a divorce:

1. Registered in the name of one of the spouses, but funds spent on the purchase of joint property (car, household appliances, other common needs).
2. Issued in the name of both spouses when they act as co-borrowers.
3. Issued in the name of one of the spouses without the knowledge of the other, if the money was spent jointly.
4. They were formalized before marriage, but the funds were spent jointly after the marriage.

It is necessary to take into account that the burden of proving that the loan is subject to division falls on the spouse who considers it joint and subject to division.

A lawsuit for the division of credit obligations can be filed both during a divorce and after it, either as a joint application for the division of property and debts, or as a separate statement of claim.

Features of the claim

Most often, ex-spouses cannot independently agree on the repayment of debts after a divorce and are forced to go to court. And for this it is necessary to correctly prepare a statement of claim.

When drafting, it will be necessary not only to consistently describe all the reasons why the plaintiff demands to divide the debt obligations, but also to state the best, in the plaintiff’s opinion, option for division, and to independently calculate the remaining outstanding debt.

All statements of the plaintiff must be supported by documents; the evidence base may include both the loan agreement itself and a certificate from a credit institution about the amount of the remaining debt.

Important. The plaintiff must prove that the funds borrowed were spent on joint needs and the debt is common.

The nuances of dividing debts during divorce

During a divorce, debts can be divided at any time, as during the divorce itself. divorce proceedings, and after divorce. But it would be more expedient to file demands for division of the loan in a joint claim for divorce, division of property and debts, this will make it possible to resolve all problems in one trial.

In this case, there will be no need to draw up a separate statement of claim for the division of loan obligations; all these requirements can be stated in one statement of claim.

Such a claim will need to be supplemented with documents certifying the existence of a marriage between the opponents, as well as a loan agreement and a certificate from a credit institution about the balance of the debt. In other words, it is allowed to combine several demands accompanying divorce in one statement of claim.

Claim period in cases of loan division

The period of claim in court cases regarding the division of loan obligations is three years after the plaintiff became aware that his rights were violated. Many citizens believe that this period of claim is counted from the moment of divorce; this is incorrect.

For example, the N. spouses, while still married, became co-borrowers of a mortgage loan. In March 2016, they divorced; during the divorce, they entered into an agreement on joint payment of the mortgage loan until it was fully repaid, the subsequent sale of the apartment and the equal division of the proceeds from its sale. In April of the following year, 2017, citizen N. learned that her ex-husband was not fulfilling the previously concluded agreement and had already long time does not pay his share of the loan. In this case, the claim period will be calculated not from March 2016, but from April 2017, when the ex-wife learned of the violation of the agreement.

Where is it served?

A claim for division of debt obligations is filed at the place of permanent or temporary registration of the defendant; if the defendant lives at the place of temporary registration, documentary evidence of this is required. If the plaintiff does not confirm this fact, the court will return the statement of claim to the plaintiff due to lack of jurisdiction.

There are two delivery options statement of claim on the division of debt obligations:

1. To the world court. The claim is filed if the debt is no more than 50 thousand rubles for each spouse.
2. To the district (city) court. Applicable if the loan amount is equal to or greater than fifty thousand rubles.

If the claim, in addition to the division of credit obligations, includes demands for the division of residential premises, it is filed at the place of exclusive jurisdiction, that is, in the court that is located in the territory where this real estate is located.

For example, citizen L. Files a lawsuit demanding to divide shared apartment and taken for the purchase of residential premises. In this case, she must apply to the district (city) court that is located in the same area where the disputed apartment is located.

The claim and the documents attached to it are submitted to the court reception in person or sent by registered mail. The court will consider the claim for compliance with the requirements of the law and make a decision either to accept it for consideration (in this case, preparations for the hearing will begin), or to reject it and leave it without progress (in this case, it will send the plaintiff a determination, which will list all the inconsistencies with the requirements of the law).

If the plaintiff does not correct all the shortcomings identified by the court within the period specified by the court, the claim will be returned to the applicant. In this case, the plaintiff has the right, having corrected all errors and inconsistencies, to go to court again.

How to properly file a claim for division of credit and debts

In accordance with Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation, a claim for the division of loan obligations must be drawn up according to certain requirements, contain all the necessary information and relevant documents must be attached to it.

Based on the above articles of the Code of Civil Procedure, it should contain the following information:

1. Name and details of the judicial authority to which the claim is filed.
2. Personal data of the parties to the process.
3. Information about the credit institution with which the loan agreement was concluded.
4. The circumstances under which the debt arose and its legal status. It is necessary to indicate the date of marriage and when the divorce occurred, when the loan was taken out, for what purposes, in what amount, details of the loan agreement.
5. Cost of claim. Here the plaintiff must indicate the amount that, in his opinion, is subject to division.
6. Title of the document. The paper must be titled “Statement of Claim for Division of Credit Obligations.”
7. Documents confirming that the loan funds were spent for joint needs.
8. Information about the balance of the debt, the procedure for repaying the loan, and the amount that has already been paid. It is necessary to indicate who exactly repaid the loan and in what amount.
9. The claim must contain references to certain articles of the law that stipulate a particular procedure for dividing the loan; it is additionally recommended to refer to judicial practice in similar lawsuits (the latter is not necessary).
10. The plaintiff’s demands for the division of debt obligations with their motivation: why the plaintiff insists on division in this particular order and in this particular way.
11. Signature of the plaintiff, date of filing the claim and list of attached documents.

Sample statement of claim

Below is an approximate standard sample of a statement of claim for the division of loan obligations. If, in addition to a simple division of the loan, you want to divide any property in one lawsuit, mortgaged apartment, to resolve other issues, it is better to contact a specialist in this field to clarify the correctness of the requirements and the method of protection.

An example of a statement of claim for the division of debt obligations

Attached documents

The following documents will need to be attached to the statement of claim:

1. Copies of the claim by the number of persons and organizations participating in the process. If the process involves one defendant and a credit institution, then in addition to the claim itself, two copies of it will need to be attached.
2. Document confirming payment of state duty. The original receipt must be attached to the claim; you can make a copy for yourself.
3. If the interests of the plaintiff are represented by his legal representative (a lawyer or another person entitled to do so), then you must attach a power of attorney to represent your interests.
4. All documents confirming the circumstances of the case (loan agreement, certificate from the bank about the balance of debt, documents confirming the repayment of the loan by the plaintiff or defendant). It is also necessary to attach copies for defendants or third parties if the plaintiff knows that they do not have such copies. For example, if the plaintiff has the original loan agreement with a credit institution, then he must attach a copy for the defendant.
5. If necessary, calculate the amount of money recovered by the plaintiff.
6. A photocopy of the applicant's passport or any other document proving his identity.

When compiling a list of attached documents, it is advisable to apply the well-known rule - everything mentioned in the statement of claim must be supported by documentary evidence.

State duty

A claim for the division of debt obligations is a property claim; accordingly, it must be paid, as with any claim of a property nature, in accordance with the price of the claim. The price of the claim, in turn, is the share of the plaintiff, which he demands in the statement of claim.

It must be borne in mind that all joint property of the former spouses is subject to division, including their loans and other debt obligations. Therefore, when determining the price of a claim, it would be incorrect to indicate only the balance of the outstanding loan, thus trying to reduce the amount of the claim and, accordingly, the amount of the state duty.

There are often cases when the plaintiff is not able to immediately pay the state fee, especially if a large debt is divided, for example, a mortgage. If the applicant has valid reasons for reducing the amount of the state duty, he can submit a request for a deferment or installment payment of the state duty, or for a reduction in its amount. The application must be accompanied by documents that will confirm the applicant’s application; these may include:

• income certificate;
• documents that confirm that the plaintiff is dependent on minors or incompetent citizens;
• health certificate, etc.

Counterclaim

Situations often occur when one of the spouses files a claim for the division of jointly acquired property, but “forgets” that a loan issued to the other spouse was used for the purchase, and this debt has not yet been fully repaid. The defendant has no choice but to file a counterclaim for the division of debt obligations under the loan. In accordance with the law, the court will accept a counterclaim in such or similar cases if it meets certain conditions, namely:

1. There is a visible cause-and-effect relationship between the first and counterclaims, and consideration of them within the framework of one process will allow the dispute between opponents to be resolved quickly and more productively.
2. If the court fully or partially satisfies the claims of the first claim, without taking into account the counterclaim, then this will a priori entail an infringement of the rights of the defendant in the process.

When served

The defendant can file a counterclaim at any stage of the process:

• immediately after he received a copy of the opponent's claim;
• at the beginning of the process;
• at any stage of the proceedings.

Important: a counterclaim must be filed before the court renders a verdict in the case.

If the defendant wants the court to quickly consider the case and make a decision on it, it is advisable to file a counterclaim either before the start of the trial or immediately after the plaintiff’s claims are announced. In this case, the court will consider the case based on the positions of both opponents.

If the defendant is not ready for the process and needs to gain time, then it is advisable to file a counterclaim in the middle of the proceedings, then he has the opportunity to petition the court to postpone the hearing so that he can prepare a statement of claim. This will allow the defendant time to prepare for the trial and collect the necessary evidence.

For example, plaintiff K. filed a statement of claim in court demanding the division of a jointly owned country house, which the defendant uses after the divorce. Ex-wife In the lawsuit, she filed a counterclaim, stating that the dacha was bought with funds she took on credit in her name. She also stated that the loan has not yet been repaid, she continues to pay it, and asked to postpone the trial so that she could file a counterclaim.

At the next hearing, the court divided the dacha between the plaintiff and the defendant, obliging the latter to pay the plaintiff monetary compensation in the amount of half the cost of the dacha. In addition, the court divided the defendant’s debt to the credit institution, thereby part of the assigned monetary compensation was credited to the plaintiff's debt.

How to compose correctly

A counterclaim is filed according to the same rules as the main one; it must include the following information:

1. The name of the court to which the counterclaim is filed and its details.
2. Personal information of the plaintiff and defendant.
3. Heading “Counterclaim...”.
4. Information about the main case for which the counterclaim is being filed.
5. Subject of dispute.
6. Arguments that parallel consideration of two applications will speed up the process.
7. Links to articles of law under which the plaintiff files a counterclaim.
8. Requirements to the court for a counterclaim.
9. List of attached documents.
10. Date and signature of the plaintiff.

This interesting decision was actually made several months ago and on February 16, 2016.

There are so many details and nuances in any divorce that each time such cases require the most serious attention from judges. This time, too, the main problem turned out to be loans taken out by one of the spouses before the divorce.

It is now difficult to find a family that does not have at least one loan, so the issue of dividing borrowed amounts worries many. Moreover, some marriages last less than the length of loan repayments.

So, a certain citizen filed a lawsuit in the Volgograd court against his now ex-wife. He asked to divide jointly acquired property, including loan debts.

The marriage between them lasted 13 years. There were two loans: one was taken in 2011, the second a year later. The plaintiff asked for everything in half: both the property he acquired and the loan debts.

The ex-wife responded with a counterclaim, where she wrote that the ex hid part of the goods, including the car, and everything that was needed must be divided.

But the main thing is that the citizen was against dividing the two loans, stating that during the marriage she knew nothing about them and did not give consent to the conclusion of these loan agreements. The district court recognized the first loan as general. The regional court did not agree and recognized both loans as common. Ex-wife appealed to the Supreme Court, disagreeing with this division of loans unfamiliar to her. The Judicial Collegium for Civil Cases of the Supreme Court began to look into this matter.

It turned out the following: the loan in 2011 was received for urgent needs, and a certain man acted as a guarantor. He and another citizen became guarantors for the loan next year. The family boat crashed into everyday life, and the relationship between the spouses ended in 2012. Official divorce - spring 2013.

The district court, considering this case, said that under the Family and Civil Procedure Codes, the ex-husband could not prove that the money from one of the loans was used for the needs of the family. The appeal, guided by the same articles, declared that “the occurrence of monetary obligations during the marriage in the interests of the family” must be proven by the wife. But she couldn't do it. This means that debt is a common obligation of the spouses.

The Supreme Court in its conclusion emphasized: the common debts of the spouses when dividing common property are distributed between them in proportion to the shares awarded to them.

And besides this, the Family and Civil Codes (Articles 35 and 253) establish a presumption of the spouse’s consent to the actions of the other in disposing of common property. But our current legislation does not contain the provision that such consent is assumed even if one of the spouses has debt obligations to third parties. Moreover, the Family Code has Article 45, which directly provides that for the obligations of one of the spouses, recovery can only be on the property of this spouse. That is, you can take on your husband’s debts only from property that belonged to him. According to our legislation, in a marriage, each spouse has their own obligations. Thus, according to Article 308 of the Civil Code, the obligation does not create obligations for “other persons,” that is, for people not participating in the case as parties.

Consequently, the Supreme Court concludes, if one of the spouses enters into a loan agreement or any other transaction related to the emergence of a debt, such debt can be recognized as common under certain conditions.

These conditions, or rather, circumstances, are listed in Article 45 Family Code. Judging by this article, the burden of proving that the money was spent solely on the needs of the family lies with the party that claims to distribute the debt.

According to Article 39 of the same Family Code, the obligation of a husband and wife will be common if it arose on the initiative of both spouses or was actually an obligation of one of them, but everything received was spent on the needs of the family.

As the Supreme Court said, it is legally significant in this case to clarify the question of whether the money received by the husband was spent on the needs of the family. But in our case, the appellate court did not even bother clarifying this issue. Considering that the ex-husband is a borrower, said the Judicial Collegium for Civil Cases of the Supreme Court, it is he who must prove that all the money he received was spent on the needs of the family. And the appeal’s statement that the wife must prove this, the Supreme Court said, contradicts the requirements of our legislation. As a result, the Supreme Court overturned both the decision of the second instance in full and the decision of the district court, which ordered the wife to pay half of the ex’s debts only on the first loan. So loans taken out by the legal husband will remain his problem unless he proves that the money went to the family.

In accordance with family law, in the event of a divorce, the property of a married couple is divided equally. In this case, property means not only real estate, transport, valuables, but also family debts.

The distribution of assets is made in judicial procedure. In order for property and debts to be divided, one of the spouses must file a lawsuit in court.

Debt obligations of spouses

Debts are formed in various ways. Debt may arise due to non-payment of utility bills or the need to compensate for material damage to someone. Debt can also be a consequence of drawing up a credit agreement or loan. In accordance with Russian legislation Credit obligations are divided into two groups - general and personal.

Are common

Like acquired property, loan obligations are divided between spouses. In this case, it is of no small importance whether the debt is common or exclusively for the spouse.

A debt is considered joint if:

• the loan agreement was executed with the consent of both parties;
• the spouse is the guarantor;
• the funds provided by the bank covered the family’s expenses (for the purchase of real estate, for renovating an apartment or purchasing household appliances, for family vacations);
• The wife or husband was notified by the financial institution that the other spouse had made a loan.

Personal

In accordance with Article 45 of the Family Code of the Russian Federation, a loan is recognized as personal if the agreement was signed by one of the spouses, and the other did not approve the loan in writing. The loan funds should not be spent on the general needs of the family. If a wife took out a mortgage loan to purchase a house in which she lived with her husband, the debt obligation is not sole, even if the man did not give written consent to the banking institution.

Debts subject to division in divorce

Both credits and borrowings of spouses must be divided during a divorce. If the loan was issued before entering into marital relations and was paid during their validity, the other spouse does not have to pay, but has the right to demand compensation for funds paid during the marriage.

The debt must be repaid regardless of whether the marriage is dissolved or not. If the loan funds were spent on family needs, the court will never oblige only the person who entered into the agreement to pay the debt.

Division of debt obligations occurs when a couple owns and uses property jointly. If the husband or wife wishes to take back the material item on the loan, he or she will have to pay the balance of the loan themselves.

What is fictitious debt?

A fictitious debt is a non-existent debt invented by one of the spouses in order to increase their share of property and, accordingly, reduce the due share of property to the husband or wife. Refuting fictitious debt is not as easy as it seems at first glance. You can prove fictitiousness in the following ways:

• order an expert study of handwriting and how old the paper was written;
• focus on gratuitousness and the absence of requirements in the document;
• in the matter of the opponent’s creditworthiness, use his small income as an argument;
• conduct an analysis of the financial situation of the parties and their relationships.

How to divide debts?

The division of jointly acquired property and debt obligations is carried out in several ways. So, both can be divided between ex-husbands and wife in half, transfer to one of the participants in the divorce proceedings a large part of the property or debt obligations.

In accordance with the legal acts of the Russian Federation, property and debts after a divorce must be divided taking into account equal distribution if the funds were spent on improving the well-being and meeting the needs of the family. In this case, under the loan agreement, the principal debt and interest are paid, and in the case of a loan, only the principal amount of the loan. If the debt was incurred through a loan from relatives or friends, it is recommended that the married couple draw up an agreement indicating the amount and procedure for its payment.

General scheme

The principles and provisions for the division of property and debts are outlined in the RF IC. Section features:

• if one of the partners has an obligation, collection occurs only in relation to him (if the property of the defaulter does not fully cover the debt, the creditor has the right to collect the balance of the debt from the spouse);
• when dividing common property, debts are divided in proportion to the shares approved during the dissolution of the marriage;
• if the loan was used for family needs, foreclosure is directed to the couple's property.

If you have minor children

The presence of children does not affect the shares when dividing loan obligations between parents. The debt on a mortgage or consumer loan is divided in half.

However, the judicial authority must pay attention to financial situation the parent with whom the children remain. If the mother cannot fulfill the obligation, the judges may leave everything unchanged and the father will repay the loan.

If one of the spouses claims property that has not yet been paid for

There are two options for obtaining a mortgage for a married couple. The first is when the husband and wife are co-borrowers, and the second is when one of the spouses enters into an agreement with the bank. Mortgage debt can be divided in half between co-borrowers by signing an additional agreement with a financial institution.

The contract can also be re-issued to the husband or wife. In this case, one assumes the obligation to pay, and the other loses the right to the property. If the banking institution does not mind, the mortgaged apartment can be sold and the proceeds divided.

Where to file a claim?

The place where the claim is filed depends on the amount of the debt. So, if the amount is over fifty thousand rubles, the claim is filed in the city or district court, if less - to the magistrates' court. In this case, the document is always submitted where the defendant lives.

As well as acquired during married life property, obligations for various loans and other debts after termination family relations must be divided. This is stated in family and marriage legislation. To carry out the procedure, you need to draw up a statement of claim for the division of loan obligations between spouses and submit it to the court.

According to the law, all things, real estate, as well as funds and debt obligations acquired during marriage are recognized as jointly acquired property, which means they are subject to division. Although this situation has its own characteristics:

• the loan debt of one family member will remain only his debt even after a divorce, unless the plaintiff proves that the money was spent on general needs;
• if funds withdrawn from the credit card were used to purchase household appliances or other devices used by the second spouse, such obligations are subject to division;
• Those loans are not considered common if the money was spent by one of the spouses on personal needs, maintenance of third parties, or gambling.

The information listed above must be included in the application. Otherwise, the judge will not take such information into account. If a sample statement of claim is being prepared due to mortgage payments, there will be no difficulties in determining the possibility of division. The fact is that banks often make a condition for issuing funds for the purchase of real estate marriage contract. And there the obligations of each party are indicated. In addition, it will be easier to prove that the funds were spent on the needs of both spouses. A guarantee from the second spouse on the loan will also help speed up the consideration of the claim. The main thing is that evidence of such facts be preserved.

What should be included in a motion to separate obligations?

If it was not possible to divide debt obligations through the conclusion of a peace agreement, you will have to turn to the judiciary. In fact, the spouses simply cannot agree on who will repay the loan and in what amount. The problem can be solved by a prenuptial agreement, which clearly states the obligations of the husband and wife. But if there is no agreement, the only way out is trial, started after . The judicial procedure will require more effort and time to resolve the conflict. Therefore, the application must be made with special attention to details:

• correctly write the address and name of the court district where you are sending the claim;
• provide detailed information about the parties to the proceedings, including addresses and contact numbers;
• a financial organization specified in the loan agreement can be involved as a third party;
• do not forget to indicate the cost of the claim, equal to the total amount of obligations requiring division;
• refer to the norms of legislation affecting the legal relations indicated above;
• present to the court full information about the loan, including the date of signing the agreement, the circumstances of its conclusion, the amount of debt and the entire amount of funds received from the financial organization;
• write down the claims in detail and justifiably, including the division of obligations for debts;
• list the list of attached documentation, indicate the date of application and the signature of the plaintiff.

You may file a separate claim for separation of obligations, or indicate such a claim in the petition for . In the first case, the document is sent to the court after the divorce.

What documents will be required to satisfy the claims?

Having found a sample statement of claim for the division of credit obligations between spouses, you need to edit it by adding a list of documents in hand. Such papers must confirm the legitimacy of the requirements specified in the petition. The content of the list may differ due to the social status of the spouses: are they married or already divorced. However, there are several documents that should be attached to the claim:

• identification documents of each participant in the proceedings;
• papers confirming the fact of registration and divorce;
• loan agreement indicating the amount of obligations;
• a guarantee agreement or an appendix to the main agreement, with information about the guarantor;
• bank statements reflecting the status of the account and confirming the existence of debt;
• a certificate with information about the terms of loan repayments;
• receipts and other papers proving the purchase of property with funds received from the bank;
• confirmation of payment of the state fee and other documents that could affect the outcome of the situation.

All documents must be copied and certified by a notary. The number of copies of the claim is determined by the number of participants in the trial.

Features of consideration and satisfaction of the application

To which court the statement of claim for the division of credit obligations between spouses will be sent depends on the cost of the petition. It is also required to be indicated at the beginning of the claim. You will have to contact the magistrate if the price of the application is less than fifty thousand rubles. Anything more than this amount is sent to the district court office.

When submitting an application, you must take into account the deadline limitation period. Its course begins not from the moment the barque is dissolved, but from the day when one of the parties learned about the current situation. If the deadline is missed for a satisfactory reason, it can be restored by filing a corresponding petition with the court.

The third party in such proceedings will be financial institution, which issued the loan funds. She will also have to be notified of the filing of a claim. This way you respect the interests of all parties involved in the case. IN otherwise, if you do not notify the bank, its representatives will be able to appeal the court’s decision, delaying the consideration of the situation for an indefinite period. By complying with all the conditions for drawing up and submitting a petition, you increase the chances of your claim being granted.