After the divorce, the spouses somehow need to divide the jointly acquired apartment in the mortgage. Moreover, there are often cases when one of the spouses does not want to sell the apartment, and the other does not want to pay monthly loan payments for it. The thought arises: is it possible to pay a mortgage payment instead of alimony. And the apartment will remain for the children, and there will be no problems with alimony, and mortgage payments may turn out to be the lesser "evil".
From the point of view of legislation, it is allowed to count mortgage payments as a set of alimony until the child reaches the age of majority. But there are a number of nuances in this issue.
If the former spouses come to such an agreement voluntarily - and this is most often the case - it is necessary to correctly draw up a voluntary alimony agreement or an alimony agreement. Moreover, the text of the agreement should not be regarded as material assistance to the child, donation or gratuitous improvement of housing conditions. In this case, the agreement in all cases must be drawn up through a notary.
Equally important is the ratio of the monthly mortgage payments to the minimum alimony required by law. If the alimony payer agrees to pay every month an amount equal to or greater than the alimony that he is obliged to pay by law, from the point of view of the law, there will be no questions to him.
If the payer of the alimony makes a payment less than the minimum alimony required by law, the recipient of these alimony can at any time sue to recover the unpaid alimony payments. Regardless of how the text of the agreement was drawn up, the court will take the side of the minor and oblige the payer to pay the amount of the shortfall to the amount of the minimum alimony required by law.
Also, according to article 104 of the Family Code of the Russian Federation, it is possible to transfer the right to real estate against a part of the alimony obligations. In this case, the alimony payer transfers his share of the apartment to the alimony recipient to offset part of the alimony obligations. If the cost of the apartment is equal to the alimony obligations, then set off them in full. But if the apartment is still in the mortgage, the consent of the bank is required to make transactions with the collateral, and they do not always agree to this. An exception is made only in cases where both co-borrowers are sufficiently solvent to pay off the remaining loan alone.
In this case, it is also important for the alimony payer to formalize this transaction as an alimony agreement so that the ex-spouse or ex-spouse does not subsequently file for alimony, motivating the receipt of money as material assistance. It is necessary to obtain an expert opinion on the real value of the apartment at the time of transfer of money to the set-off of alimony, so that the fact of transfer of property or part of the property with the specified value of this property is included in the alimony agreement.
In case of submission of the former or the former to the court for alimony, the above documents will be able to prove that the alimony obligations are fulfilled properly. Moreover, the judicial authorities will be able to accurately calculate what part of the alimony obligations has been fulfilled, whether the money received is enough to completely close the alimony obligations and how much alimony will have to be paid.
When drawing up an alimony agreement, it is also a voluntary agreement on the payment of alimony, a number of nuances should be taken into account. As already mentioned, it should be drawn up with a notary. A notarized agreement acquires the force of a writ of execution. And if one of the spouses subsequently performs it in bad faith, he can be forced to do so with the help of bailiffs. For a bona fide alimony payer, this agreement is proof of his bona fide fulfillment of his obligations if the ex-spouse sues.
Moreover, later this agreement can be changed only with the mutual consent of the former spouses. Or if the income of the alimony payer has increased, and the share of real estate has already covered all his obligations (the mortgage payment has become less than the alimony required by law).
If, when assessing the share of real estate, the spouses evaluate it in the same way, an expert assessment of its assessment need not be carried out. However, the value of this share should not be significantly underestimated or overestimated, but should be approximately equal to similar objects for sale at the time of the agreement. If the spouses disagree in their assessment, you cannot do without the help of experts. However, the alimony agreement must state that the value of the real estate share is indicated on the basis of the relevant expertise.
The alimony agreement must indicate the value of the transferred share of real estate or the amount of the monthly mortgage payment that one of the spouses undertakes to pay.
If the spouses have not come to a voluntary agreement, the divorce has to be filed through the courts. At the same time, the apartment will be divided according to a court decision, but each spouse will be obliged to pay his share of the monthly payments. Moreover, the bank will not care which of them will deposit money. In any case, the bank will be able to take the apartment if the mortgage payments are not fulfilled.
In case of divorce of the spouses through the court, the bank will certainly be involved in the division of the apartment as a third party. And if the issue of dividing mortgage payments is not resolved by an amicable agreement, they will remain undivided until the loan is fully repaid or until the sale of this apartment.
