Division of loans in case of divorce
In case of divorce, the former spouses have to share the jointly acquired property, including also loans, loans, and other debt obligations. There are two ways to resolve issues under the section of such obligations: voluntary and judicial.
A voluntary procedure implies the achievement of an agreement between spouses, which can be expressed in the form of a marriage contract before the dissolution of the marriage, or an agreement on the division of property acquired during the marriage and in common joint ownership, both during the marriage and after its dissolution.
A prenuptial agreement is concluded by spouses entering into marriage at any time and in a certain amount of rights and obligations with the aim of increasing the culture of marriage and family relations, the responsibility of one spouse to another, determining the rights and obligations of spouses in marriage and (or) after its dissolution.
Spouses may indicate in the prenuptial agreement the conditions and procedure for the return of general debts and other joint obligations. So you can determine who and for what loan obligations will be responsible. At the same time, the bank in which the loan was taken will make demands on the execution of the contract to the person in whose name the loan was issued. If the other spouse is responsible for the loan under the terms of the prenuptial agreement, the first is entitled to demand reimbursement from him of the funds paid by him for the loan.
However, it should be remembered that a prenuptial agreement cannot contain conditions that put one of the spouses in an extremely disadvantaged position or that contradict the basic principles of family law.
Accepting the application for divorce, the court provides the spouses with a three-month period for taking reconciliation measures, as well as for reaching an agreement on the division of property, which may include issues of fulfillment of loan obligations.
The court procedure involves filing a lawsuit in court. When dividing property, the court takes into account the total debts of the spouses and the rights of claim for obligations arising in the interests of the family.
For claims on the division of property, which is the joint property of the spouses, whose marriage is dissolved, a three-year limitation period is established.
To split the loan, it matters which of the spouses and for what purpose took it. So can be divided between spouses only those loans and borrowings received by them jointly, or by one of them, but in the interests of the family.
The general rules for the division of jointly acquired property also apply to the loans and borrowings section. In the case of the division of the loan, which is the common debt of the spouses, their shares are recognized equal, unless otherwise provided by the marriage contract. The court has the right to derogate from the recognition of shares as equal, taking into account the interests of minors and needing help of disabled adult children or the interests of one of the spouses noteworthy. The share of one of the spouses, in particular, may be reduced if the other spouse shied away from work or spent common property to the detriment of the interests of the family.
If the debt obligations were taken jointly by the spouses, then both the jointly acquired property and the property of each spouse shall be recovered.
If a loan was received by one of the spouses, then the penalty may be levied on the jointly acquired property, if the court determines that the funds received on the loan were used in the interests of the family. If such a loan was paid by one of the spouses before the trial, then he is entitled to demand from the second reimbursement half of the funds paid on the loan.
However, if one spouse proves that the second took a loan during the marriage for his personal purposes, and not in the interests of the family, then such a loan is not subject to division between spouses.
Circumstances confirming the personal interest of one of the spouses are established based on the circumstances of the acquisition of property: the time of acquisition (before marriage or during the marriage), the reason for the acquisition (in which transaction the funds were received, were used by the spouse for general or personal funds). Any means of evidence provided for in the Code of Civil Procedure may be used: testimony of relatives, friends, acquaintances, neighbors; written evidence, expert opinions and others. You can also petition the court for a claim to any state body, legal entity, citizen, to present the documents they have, other written evidence, within the specified time period, without requiring payment of the costs of their submission.
The bank in which the loan was received is also involved in the loan sharing case. This is especially true of the division of real estate acquired by spouses on a soft loan. In such cases, spouses are required to notify the bank of the divorce.
