One of the most common questions in a divorce is whether it is possible to pay a mortgage instead of alimony. This desire is dictated by the desire to reduce the burden on their financial obligations. Let's try today to figure out whether such a solution to the issue is possible.
The amount of alimony is established by the Family Code of the Russian Federation. According to the current legislation, in 2018 the amount of payments is determined by the following interest rates:
- if the alimony has one child - 25% of the amount of income;
- two children - 33%;
- three or more - 50%.
As you can see, the amounts are quite significant and can seriously hit your pocket. Especially if, in addition to payments in favor of the child, the ex-husband also pays other loans. Therefore, many people want to "kill two birds with one stone": to pay the mortgage on account of alimony.
Is it possible to pay a mortgage instead of alimony?
Formally, according to the law, mortgage and alimony are completely different obligations that have nothing to do with each other. But in practice, the costs for both items are an encumbrance for their payer. To resolve this issue, you first need to look at the time of purchase of housing.
- If the apartment was purchased by one of the parents before marriage, then after the divorce it remains in his property, and he alone bears all the costs for it. Accordingly, in this case, it will not work to set off the payment of the mortgage against alimony.
- If housing was purchased after marriage, then it is common property, and after the divorce, the mortgage debt is divided in half. It is already possible to conduct a dialogue here.
But it will have to be carried out with the child's mother, since the set-off of alimony is not allowed in court. Since in the second case, the ex-spouse is also obliged to pay the mortgage, you can compromise and conclude a notarial voluntary agreement. This document will stipulate the monthly payment of a certain amount intended to be paid as child support in order to pay off the mortgage debt. The law allows such an agreement, since it does not violate the rights of the child, because the funds that would have been spent by the mother to pay off the mortgage loan will remain in the family budget. Thus, a kind of offset is obtained.
Can a mother pay her mortgage out of child support?
Along with the topic of offsetting alimony, there is also the question of the legality of the child's mother using alimony funds to pay her share of mortgage expenses. Often there are situations when men very scrupulously and jealously monitor where the amounts of alimony they pay are spent. Mothers are not required by law to report their expenses to their ex-spouses. If the child is provided with everything necessary for normal growth and development, there will be no complaints.
Firstly, because it is almost impossible to determine exactly what funds went to pay off the mortgage - the mother's personal income or alimony. Secondly, since the purpose of the alimony payments is the material support of the child, which is necessary to maintain his previous standard of living and development. If a child is the owner of an apartment that is in a mortgage, or is registered and lives in it, then the repayment of mortgage payments with alimony cannot be considered as misuse of the funds received.
Nevertheless, if the child's father manages to prove the fact that the ex-wife was spending the funds intended for the child for other purposes, then the Family Code gives him the right to demand the transfer of a certain part of the total amount of alimony (currently no more than 50%) for personal child's savings account.
Is it possible to reduce the amount of alimony if there is a mortgage?
In this matter, the court proceeds from the same premises as when replacing alimony with mortgage payments: the mortgage and alimony are not connected, but for the payer, one way or another, this is a certain burden.
Therefore, in the event of a significant decrease in income, a man can send a claim to a magistrate's court to reduce the amount of alimony. The following reasons may serve as evidence of insolvency:
- getting an injury, serious illness or disability;
- decrease in the size of wages;
- layoffs for reasons beyond the control of the employee;
- the presence of other dependents (they may be other minor children, disabled parents, a pregnant spouse);
- the presence of mortgage obligations for the apartment / house where the child remained to live or is the owner.
To confirm the above facts, you need to submit supporting documents to the court. If the court considers them to be respectful and sufficient to reduce the burden of paying material obligations, it will reduce the amount of alimony.
Thus, it is possible to replace alimony payments with mortgage payments, but only by concluding an agreement with the child's mother. It is also possible to reduce the amount of alimony payments if the alimony payer has good reasons for this.
