"Military Mortgage" Division of an apartment acquired during marriage.

What is a military mortgage

Since 2004, employees of the Armed Forces of the Russian Federation have had a real chance to acquire their own housing. According to the law, each participant in the mortgage program enters into an agreement with a special state structure, FGKU Rosvoenipoteka , which operates under the supervision of the Ministry of Defense. From this moment on, a special account is opened for him, to which the state transfers a certain amount of money, indexed annually. As a participant in a special program, a serviceman, 3 years after signing the agreement, acquires the right to apply to the bank with a request for a loan to purchase an apartment using a military mortgage. In the future, funds transferred by the state to the participant’s account are used to repay the debt.

Features of the NIS program

The savings and mortgage system (or NIS for short) for military personnel has its own distinctive features. How the process of participation in it is carried out step by step:

1. A citizen can become a participant in the NIS voluntarily or automatically. This will depend primarily on military rank. Having drawn up an agreement, such a person receives a personal identification number and is included in a special register.
2. After 3 years, the citizen draws up a report and, based on it, receives the amount accumulated in his account, but not in his hands. It is transferred to another bank account with which the serviceman enters into an agreement.
3. Next, the state annually transfers a fixed amount of money to this account, which is used to repay the loan. In 2020 it is 268 thousand 465 rubles.

The Military Mortgage Program regulates two ways to obtain living space:

1. Apply for a housing loan and continue to serve. And the state will continue to gradually repay the loan. At the same time, the total amount is limited to approximately 2.4 million rubles.
2. Continue to save money in your personal account, and upon completion, take the entire amount and spend it on buying an apartment or house, paying in addition, if necessary, the missing part.

Instructions for purchasing an apartment with a military mortgage.

Each participant is given the right to independently choose both a bank for concluding an agreement and an apartment for purchase. But it must be taken into account that not all financial institutions cooperate with the Ministry of Defense. Their list should be clarified.

Features of the apartment section

Most often, it is impossible to divide real estate purchased with a military mortgage. But each situation has its own characteristics, which spouses and courts must take into account when considering disputes.

If the property was purchased before marriage

As a general rule, property purchased by a spouse before marriage is not subject to division (Article 36 of the RF IC). If we are talking about real estate with a military mortgage, it will not be divided either. It will remain the property of the serviceman, who is responsible for obligations only to the bank and the state. His wife will not be able to claim living space.

If a marriage contract has been concluded

Ch. 8 of the RF IC allows spouses to enter into a marriage contract and independently determine who will get what in the event of a divorce. The contract can be drawn up before the marriage is registered, but it will only come into force after it is concluded at the registry office. It is also possible to register after registration, but before the divorce.

If there is a marriage contract, until the mortgage is fully repaid, the apartment will belong to the serviceman, even if the document states that it should be divided between the spouses. After the debt to the bank is closed, the property can be divided as desired.

When concluding a marriage contract, you need to provide for several points:

1. The amount of shares that will go to spouses in the event of divorce.
2. The amount of compensation if one of the spouses uses additionally their own money to purchase housing.
3. Features of the section when using maternal capital.

Note! If maternity capital is used to purchase real estate, shares must be allocated to all family members. Subsequently, the division is made taking into account these shares, and it will not be possible to deprive children or a spouse of them. The exact size of shares is not regulated by law; it can be divided into 1/100.

If the cost of the apartment has increased

Before or after a divorce, you can divide an apartment if its value was increased during marriage due to joint investments.

Example:

The couple bought an apartment using a military mortgage, the cost was 2,400,000 rubles. While married, they made repairs with their own money in the amount of 1,000,000 rubles, bought furniture for 1,500,000 rubles. In such a situation, only common expenses will be shared. The real estate itself is not subject to division.

The amount of total expenses is RUB 2,500,000. By default, everything is divided in half (Article 39 of the RF IC). Each spouse should receive 1,250,000 rubles, and it does not matter whether the wife worked or not. All income in the family is considered common, even if only one of the spouses is employed.

Important! Sometimes courts deviate from the principle of equality and give one spouse a larger share, cutting it from the second if he did not work during the marriage without good reason, or deliberately spent common property to the detriment of the interests of the family.

If common money was used

Often, 2,400,000 rubles are not enough to purchase real estate, and spouses have to contribute their own money (accumulated or borrowed). In such a situation, the housing itself will still remain with the serviceman, but the court will divide the amount added to the mortgage.

Example:

The serviceman took out a military mortgage. The apartment was purchased with joint investments - 500,000 rubles. In case of divorce, the real estate will remain with the military man, but 500,000 rubles. the court will divide it in half, obliging the military man to pay the other party his part - 250,000 rubles.

Division of an apartment on a military mortgage - peaceful division of an apartment

If the mortgage debt has already been repaid, the military man can dispose of the property as he pleases. Until this moment, any transactions are possible only taking into account the opinion of the bank, and it is unlikely to give permission to allocate a share to the second party, and re-registration of the agreement is completely impossible under the law.

You can divide an apartment purchased with a military mortgage only after the debt is closed. To do this, the parties need to draw up a division agreement and contact a notary, because the document must be notarized.

There are several options for a partition by agreement:

1. The apartment remains the property of one spouse, the second receives monetary compensation.
2. In real estate, shares are allocated for everyone.
3. The apartment is sold, the proceeds are divided.

Note! Even if there is a child, by default he cannot claim the property of his parents, including that acquired through a military mortgage. But the serviceman can allocate him a share or donate housing under a deed of gift after repaying the debt.

Is an apartment subject to division under a military mortgage?

In most cases, housing purchased with a military mortgage is not subject to division. If we turn to the RF IC (Article 34), it becomes clear that during a divorce, spouses can legally divide only what is considered jointly acquired property. Housing with a military mortgage cannot be classified in this category, because the cash payments provided by the Ministry to repay the debt are funds for a special purpose. And according to the Code, property acquired with such funds cannot be considered joint. Plus, the apartment is registered as the property of only a military personnel who is a member of the NIS.

However, this rule has a number of exceptions. Let's consider the nuances of dividing property purchased under a military mortgage.

If the funds are not enough for the full cost of the apartment

As a rule, the bank with which the serviceman signs an agreement sets a limit on a military mortgage. Most often it does not exceed 2 million 200 thousand rubles. It is not possible to purchase an apartment for this amount in all Russian regions. For those living in the central part, this money will clearly not be enough. This means that the remainder of the cost of housing will have to be paid from your own savings.

But these same savings are already considered jointly acquired property (unless the person is able to prove otherwise). Therefore, after paying them, an apartment purchased with a military mortgage in 2020 can be divided between spouses during a divorce.

But to fulfill this condition, it is necessary that the housing debt be fully repaid. Otherwise, the apartment is considered collateral for the bank.

If maternity capital was additionally used

Housing purchased through the military mortgage system using maternity capital is always divided in equal shares among all family members, i.e. for husband, wife and children. They are all considered the owners of their share. This norm is prescribed in Federal Law No. 256.

This situation is possible if the bank with which the mortgage loan agreement is concluded accepts funds issued by the state as maternity capital to repay it. But not all financial institutions are taking this step.

If the serviceman retired before the end of the loan agreement

Any mortgage is a process that is significantly extended over time. And the military is no exception. One of the main conditions that the Ministry of Defense puts forward for making annual contributions to repay the loan is the need to serve in the Armed Forces for a certain period of time.

However, a situation may arise in which the mortgage loan has already been issued, and the serviceman needs to resign before the end of payments. In this case, the state relieves itself of the obligation to repay the loan . The rest of the payments will have to be taken from the family budget. This means that such a military mortgage can be divided during a divorce in 2020.

If joint family money was invested in repairs

According to the terms of the NIS, an apartment with a military mortgage can be purchased both on the secondary market and in a new building. The second option, as a rule, involves the need for significant repairs, which are often estimated at an amount equal to the cost of the apartment itself. Naturally, the state will not pay for the repairs. This means that funds for it will again have to be taken from the family.

Should the wife be given a share of housing on a military mortgage?

Not really

The size of the invested amount may subsequently affect the division of the apartment during a divorce. If it was significant, then the housing can be divided between the spouses. For smaller amounts, the apartment will remain with the serviceman, and the second spouse will need to pay compensation. The main thing is to save all payment documents related to the repair.

How to divide a military mortgage during a divorce

Theoretically, current practice leaves several loopholes for the division of real estate acquired with the help of a military mortgage. In order to divide residential premises purchased by a military personnel under the terms of a preferential mortgage, a number of special grounds must be met:

• if, in addition to military mortgage funds, common family funds were used to purchase an apartment, then division is possible only within the limits of the amount of own funds contributed;
• if, upon dismissal of a citizen from the ranks of the RF Armed Forces, he had to pay off the balance of the loan ahead of schedule, the funds for which were provided by the spouse;
• if the residential premises purchased with military mortgage funds were subsequently sold, then the funds received become the joint property of the spouses.

Until the encumbrance on the disputed apartment is lifted, division in the event of a divorce will only be possible in the form of payment of monetary compensation to the spouse. Thus, the spouse will not receive housing under any circumstances, and in the event of a divorce, we can only talk about the amount of compensation to be paid from the military personnel’s funds.

Let's consider the most pressing issues of dividing the property assets of spouses, which include housing under a military mortgage. How is a military mortgage divided?

Voluntary division of an apartment using a military mortgage

When diverging from peace or concluding an agreement on the voluntary division of property, spouses can, at their own discretion, determine the fate of the apartment acquired with the help of a military mortgage.

IMPORTANT: You cannot divide an apartment for which the military loan amount has not yet been paid. But if the joint funds of the spouses were used during repayment, they can be divided.

When deciding on the division of a military mortgage purchased, spouses can:

• Leave the apartment to one of them;
• Pay monetary compensation for it;
• Re-register it as shared ownership (if the loan is repaid);
• Set off when calculating the value of the rest of the property.

The voluntary division of an apartment under a military mortgage is limited only by the limits of the spouses’ own capabilities and desires.

Sale of an apartment - division of income

Alienation of real estate acquired under a military mortgage implies that the serviceman has fully repaid the debt and removed the collateral. Otherwise, no transaction will pass through the Rosreestr authorities.

After the military mortgage is fully repaid, the serviceman has the right to sell the apartment. Income from the sale of an apartment will be considered joint property, since it is not of a targeted nature.

In such a situation, the spouse acquires equal rights when dividing the specified funds or property purchased at their expense. The division will be carried out on the principles of equality of the parties, like any property of the spouses, i.e. both spouses will receive equal shares, unless the court takes into account the interests of the children with an increase in the share of one of the spouses.

Buying an apartment through a military mortgage using your own funds

Another non-standard situation when dividing an apartment using a military mortgage would be the case where the spouse added her own funds to purchase housing of a larger area or increased comfort. Even if the amount of the military mortgage only partially covered the cost of the apartment, the establishment of a pledge in favor of the bank and a structural unit of the Ministry of Defense of the Russian Federation cannot be avoided.

In this case, the division of joint property will take place according to the following rules:

• in court it is necessary to determine the share of the apartment that was purchased at the expense of the spouse or the general funds of the family;
• the share of the apartment corresponding to the amount of the military mortgage will be excluded from the division;
• for the share of the apartment corresponding to additional funds, a market value assessment will be carried out, after which the spouse will be able to receive a compensation payment.

Proving the fact of investing your own or family funds in a purchase is not so difficult; it is enough to compare the amounts for the transaction, the down payment of funds accumulated in the NIS account and the loan agreement.

IMPORTANT: The spouse will not receive a share in the right of common shared ownership of the specified housing under any circumstances, since the residential premises will in any case remain with the serviceman.

Despite the apparent obviousness, every case related to the division of property acquired under the Military Mortgage target program requires the participation of a qualified lawyer. With its help, it will be possible to identify and apply the methods described above for dividing an apartment or part of it, ensuring that the rights of both spouses are respected.

How is a military mortgage divided?

If the issue of division is seriously on the agenda, then the parties can go in two ways:

• draw up a written agreement on the division and have it certified by a notary;
• file a claim in court.

As a rule, a mortgage in a divorce is divided with the help of a court.

The following options for a future court decision can be identified:

• The owner is the person for whom the mortgage was issued. At the same time, he will be obliged to allow his minor children and ex-wife to live in his living space for a certain period of time;
• the apartment is assigned to the serviceman, and he himself is obliged to pay monetary compensation to his wife;
• the apartment is divided between the former spouses in certain shares;
• the home is put up for sale, and the proceeds must be divided between husband and wife.

The division of an apartment purchased under the savings-mortgage system is possible only after the final repayment of the loan.

How to divide property received under a military mortgage through the court

In case of divorce and subsequent division of property, if the residential premises were purchased under the military mortgage lending program, the following is decisive:

• the entire loan was repaid using targeted funds;
• part of the loan was repaid from the general family budget.

In the first case, the second spouse has no judicial prospects, since:

• the loan agreement is signed only with the military personnel, all responsibilities for the loan are assigned only to him;
• renewing the contract for the second spouse is impossible;
• neither the conclusion, nor the dissolution of a marriage, nor the birth of children makes any adjustments.

If joint funds were used to repay the loan in addition to funds under the program, then in this case the legal proceedings in the vast majority of cases end in favor of the plaintiff.

In order to receive a share in the residential premises or monetary compensation, the second spouse must write a statement of claim to the district court of general jurisdiction at the location of the apartment. The application must be accompanied by documents indicating that part of the mortgage was repaid with joint funds, these could be:

• receipts proving that other amounts of money were deposited into the loan account in addition to funds under the program;
• documents on inheritance;
• gift agreement;
• bank statements;
• other documents that will confirm joint expenses for housing.

In addition to these documents, you will need to attach to the claim:

• title documents for residential premises (photocopies);
• registration certificate;
• photocopy of passport;
• a copy of the marriage or divorce certificate;
• receipt for payment of state duty.

When making a decision, the court is guided by circumstances that are confirmed either by documents or by testimony. Therefore, the more evidence of joint participation in the purchase of an apartment is presented, the more likely it is that the court will meet the plaintiff’s demands.

The following circumstances must be kept in mind:

1. Until the loan is fully repaid, the other party has no legal prospects.
2. Only after the loan is fully repaid and all encumbrances are removed does the serviceman become the owner of the apartment and the possibility of any real estate transaction arises, including by court decision.
3. The claims of the second party to the process are possible only in the amount of funds invested by him (personal or general).

Problems with division

The division of an apartment is usually preceded by a court decision. In this case, a very uncomfortable situation may arise when the court decides to divide the living space between the spouses, but in reality this will not be possible to implement immediately.

To initiate the division procedure, the loan debt must be completely eliminated. And here the bank may begin to insist on early repayment of the loan. In such a situation, it is permissible for the former spouses to agree on monetary compensation.

Judicial practice of dividing military mortgages

As judicial practice shows, when dividing a military mortgage in 2020, the same facts can be taken into account as when dividing other mortgage loans. This means that the spouse claiming his share must keep all payment documents related to repaying the loan or making repairs . They are taken into account by the court as evidence.

Also, when allocating shares, the court will take into account the presence of a second home for each of the parties.
In addition, the drawn up marriage contract will be the document that the judge relies on when making a decision. And if the conditions of the division were initially spelled out in it, then the court decision will comply with them. Only a person who participates in the NIS program can register ownership of an apartment under a military mortgage - this is a general rule. It has only a number of exceptions. First of all, the use of maternity capital, and secondly, the funds belonging to the whole family. In such cases, housing will be divided between the parties participating in the process.

Can the apartment go to the second spouse?

The main feature of mortgage lending in the military structure is that only military personnel who are registered in the savings system have the right to it. In this system, a specific account is registered for each person, into which funds are received.

This is interesting: Order on military mortgages 2020

It is worth considering that the amount in the account does not depend on:

• whether the person is married;
• does he have children?

That is why the features of a military mortgage differ significantly from conventional mortgage lending.

And only after this the second spouse can receive equal rights to property, but there are many features here too.

The limit for purchasing real estate with a military mortgage varies from 2.2 million to 2.4 million. These are the funds allocated by the state. You can also add personal savings and purchase housing.

Sometimes it happens that an apartment costs more than the amount established by the state, then a military man and his wife can add their own funds and buy suitable housing. It is worth knowing that when adding funds for the purchase of real estate, the spouse has the right to an apartment in the amount that exceeded 2.4 million.

The guarantee for the military man is that, regardless of the moment of marriage registration, the amount in the savings mortgage system will always belong only to the military man.

Unfortunately, despite a clear indication that property acquired under a military mortgage is not divided during a divorce, judicial practice suggests that spouses are still trying to divide the property and the obligations to pay the debt for it among themselves.

There are loopholes in the law through which the second spouse has the opportunity to claim an apartment.