One of the most common problem situations, when both spouses invested in the initial payment, but later only one of them made payments, says Grigory Skripilev, head of practice at the Intercession law firm.
He notes that regardless of whether both spouses were invested in the initial payment or only one, the apartment purchased with a mortgage will be divided upon divorce, since it was acquired during the marriage. As a rule, the court divides the common property in half.
"The loan for the former spouses will also be divided in case of divorce: when the mortgage is taken on one of them, the second becomes a co-borrower, in connection with which each spouse will pay a certain part," Skripilev notes.
If there are disagreements regarding the allocated shares, then the division of property will be performed by the court on the basis of documents confirming the amount of expenses of each spouse for the acquisition and maintenance of the disputed real estate, namely: a purchase and sale agreement, an agreement between spouses on the distribution of expenses for the acquisition of real estate, a contract (if the apartment was renovated, inseparable improvements), contracts with an insurance company, cash flow statements.
For example, if one of the spouses used their own funds to pay off the loan and can prove it, most likely his share will be higher.
"The former couple can also agree during the court proceedings on the payment of compensation by one of the parties for the share of the other party," the expert adds.
It is not uncommon for a person to sign a loan agreement and an apartment sale and purchase agreement before the wedding, and the very registration of ownership took place after the marriage. In such cases, Skripilev recommends referring to the practice of the Supreme Court of the Russian Federation.
"In particular, the Supreme Court ruled that the fact of repayment during the marriage of the personal debt of one of the spouses under the obligation arising from the contract for the sale of residential premises concluded before marriage is not a basis for recognizing the residential premises as joint joint property of the spouses. Accordingly, the property acquired under a transaction concluded before marriage is not jointly acquired property and is not subject to division upon divorce," the lawyer explains.
At the same time, he recalls that if, after the marriage, at the expense of each spouse individually or their common funds, improvements were made to the object, which increased its value, then the court on the basis of 37 Art. Of the Family Code of the Russian Federation can recognize this property as common, and, accordingly, it will be divided in accordance with the law.