What to do if your ex-husband took out a loan?

Today it is a very common situation when a husband received without his wife’s knowledge , I spent it and didn’t return the jar. He himself disappeared (went to another city or began to live at a different address). Banks and bailiffs in this case, demanding repayment of the loan and interest, attack the wife (or other spouse) with such aggression that life becomes unbearable.

It is best to contact lawyers, credit and property relations specialists. But not everyone has the financial means to do this. The services of a good lawyer are not cheap.

If it is not possible to hire, then you will have to figure it out and protect yourself.

First of all, you should read the agreement with the bank and make sure that your signatures are not in the agreement. If you didn’t sign the loan obligations, it means you don’t owe anyone anything. If someone signed the agreement for you (forged the signature), then these actions fall under the Criminal Code, you should write a statement to the police against the person who forged this signature and against the bank employee who issued the loan under the agreement with a forged signature.

A loan obligation taken by one of the spouses for his personal needs must be fulfilled by him independently.

The loan amount not paid on time should be claimed only from the person who received the loan. But creditors can recover from the debtor property that is common family property.

In that case When a legal marriage is concluded with a husband, all common property is divided between the spouses in half. The property that was acquired during the period of marriage. Property acquired before marriage is not common family property. This property cannot be recovered to pay off the debt. This should be proven using .

In the interests of children under the age of majority, the court may change the equal distribution of common property. If you have small children, then you need to take advantage of this opportunity and get the court to change the distribution of shares in the common property in your favor. This step can protect part of the property from foreclosure.

During the consideration in court of the issue of collecting part of the common property, the wife must explain that she did not spend the money borrowed by her husband on herself, that he spent it only for his own needs, it is better to provide evidence or bring witnesses to court who will confirm this . Otherwise, the court may impose the obligation to repay the debt on the wife.

Another opportunity to protect property from being seized to pay off a debt is to file for alimony against your husband.(if there are small children), if the husband does not pay child support, his property can be seized and then it cannot be recovered to pay off the bank debt.

The most painful moment that may arise is the possibility of foreclosure on housing that was purchased by the spouses during the marriage. This can happen if the debtor husband does not have a permanent income, does not have property that can be recovered, or the property recovered from him has not fully compensated the debt. That is, the debtor husband has nothing but an apartment. If a shared apartment is the only housing, then the likelihood that the court will decide to evict the wife and child from their own apartment is minimal.

A woman should not agree to an offer in order to purchase a smaller apartment and repay the debt. This is the most hopeless way to solve the problem of debt repayment. There is a high probability of being left completely without living space.

The worst possible outcome in court is that the wife will be required to repay her husband's debt through partial deductions from her wages. This could last for many years. In this case, you need to know that if the wife does not have a job and no salary, if the woman is on maternity leave (or leave to care for a minor child) or the only means of subsistence for her and her children is social benefits, then she will not face deductions. Property deductions from maternity benefits, child care benefits, and social benefits are not made by law.

The situation when a woman is asked to pay a debt is morally very difficult. If possible, it is better to temporarily settle in another place, unknown to creditors, in order to avoid constant moral pressure and live there until the situation is resolved. If this is not possible, and creditors keep coming home, perhaps lying in wait at the entrance or in the entrance, intimidating, then an effective way to protect yourself from this can be to report to the police the illegal (and often criminal) actions of creditors.

A person who did not borrow money and did not sign a loan agreement cannot be demanded to return it, even if his legal spouse borrowed the money. Such actions are qualified by the Criminal Code as arbitrariness, and possibly extortion, and people involved in this are subject to criminal prosecution.

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Taking out a loan is a very responsible matter. But an even more important task is to pay it off.

What to do if your husband took out a loan, but for some reason he does not pay it back?

Is the wife responsible for her husband’s loans, and how does the debt collection process take place?

You will find answers to these questions below.

There are situations in life when men deliberately take out a loan, and even more than one, in order to settle their financial problems.

At the same time, they do not notify their other halves about this; for example, they do not want their wives to know about their passion for gambling (losses in poker, billiards, etc.). But they flirt so much that in fact they cannot repay the loan.

Naturally, when the wife finds out about this, she begins to panic, she wants to know whether she bears any responsibility to her husband’s debts if he took out a loan even without her knowledge for his personal needs?

According to Art. 45 of the Family Code of the Russian Federation, he must be personally responsible for the debts of one of the spouses if the second spouse proves that the money was not used for the needs of the family (it was lost at cards, that is, for the husband’s personal purposes).

Moreover, if the husband is unable to pay the debt, then collection can only be applied to his property (or to part of the property if, for example, an apartment or car was purchased during marriage).

What is important here is the fact of proof that the spouse took out a loan and spent the money for his own purposes.

According to Family Law, if the husband cannot repay the debt he has incurred, then the creditor has the right through the court to demand collection from the debtor by allocating his share of the apartment (meaning the share that would go to the husband when dividing the common property).

If a man took out a debt for the general needs of the family and was unable to repay it, then the apartment can actually be foreclosed on in court, that is, sold at auction, and the proceeds will be used to pay off the debt.

However, such an outcome can only occur under one condition: if the apartment put up for sale is not the only place of residence for the family.

If the apartment is the only place of residence, then according to Art. 446 of the Civil Code of the Russian Federation, it cannot be foreclosed on (except if the apartment is the subject of a mortgage. Then the bank has the right to take it away).

If you don’t want the apartment to be divided to pay off the debt, then you should go all-in: transfer the spouse’s share of the apartment to yourself.

You can do this in several ways:

1. Conclude a gift agreement, according to which the husband gives his share of the apartment to his wife.
2. Conclude a marriage contract, according to which the apartment will go to the wife in case of divorce.

If the apartment was purchased by the wife before marriage, the bailiffs do not have the right to consider the apartment as the subject of repayment of the husband’s debt.

If the husband does not have the money to pay off the debt, and the joint property is not enough to pay off the debt, then by court order his wife may be forced to pay off the debt for her husband. After all, according to the law, spouses must be jointly and severally liable to the creditor.

This means that the court can oblige someone who has something to collect to pay off the debt.

For example, if a wife has a deposit in a bank, then by a court decision she may be required to terminate the deposit agreement and transfer the money to the creditor.

If the wife does not have money, then in court they can collect the debt from the common property, provided that the judge establishes the fact that the money borrowed was spent on the needs of the family, and not on the personal goals of the husband.

The wife is released from financial responsibility if she can prove in court that the money her husband took on credit was spent on his personal needs and not on the family. Then all financial responsibility will pass to the spouse.

There are situations when a spouse does not repay a bank loan, the debt grows and then the bank decides to transfer the debt to a collection service without the consent of the debtor. The activities of employees of such an organization often cross the line of the law.

Many people, not knowing their rights, voluntarily give up their apartment, transferring it to a collection organization.

It is important to understand that the activities of collection companies in 2019 are not prescribed anywhere in the legislation.

All actions ordered by the court must be carried out by bailiffs. Only they have the right to take away the property (if the court rules) or force the debtor to repay the debt in another way.

Therefore, if collectors call or employees of such a dubious organization come home, you have every right:

• do not open the door for them;
• don't talk to them;
• do not transfer property, do not sign documents.

If collectors try to seize the debtor’s property by force, the debtor must contact the police.

A judge can order the borrower to repay the loan. Based on the judge’s decision, the appointed bailiff arrives at the defendant’s apartment, makes an inventory of his property, and confiscates the necessary property for the purpose of its further sale.

He uses the proceeds from the sale of equipment or other things to repay the debt.

Should a wife pay a loan for her husband after his death?

It all depends on the situation.

If, when drawing up a loan agreement, the borrower drew up an insurance agreement, which states that in the event of his death, all rights to repay the loan fall on the insurance company, then, naturally, the wife should not pay the debt. This responsibility falls on the shoulders of the insurance company.

The task of the wife of the deceased is to find documents and, together with the loan agreement, insurance policy and death certificate of her husband, contact the insurance company.

If the death of the borrower actually falls under the insured event, then the insurance company will have to pay the bank the loan taken out.

If the deceased spouse had property, then after death it passes to the wife by inheritance. Along with rights, responsibilities also pass to her. This means that the woman will have to repay the loan to the bank.

But there are nuances here:

If the spouse acted as a guarantor and signed the documents, then she will be obliged to repay the loan debt.

If the loan was taken without a guarantor, and the money was spent on the personal needs of the spouse, then she is not obliged to repay the debt.

If the loan was taken for the general needs of the family, then according to the law the wife must also bear responsibility.

Some women ask the question: “Can they collect a debt from their wife from her salary if the husband does not work anywhere?” Answer: “No, they can’t. Collection of debt under a loan is applied to the property of the debtor.”

If we consider the issue at the legislative level, the consent of the second spouse when taking out a loan is not provided for by law.

However, banks often play it safe and when applying for a mortgage loan, a mandatory condition of the agreement is to involve the second spouse as a co-borrower.

If we are talking about a consumer loan, for example, buying a TV, washing machine, etc., then the consent of the second spouse to take out a loan is not required.

What to do if the husband took out a loan without his wife’s consent and does not pay it? What does the law say?

According to paragraph 1 of Article 45 of the Family Code of the Russian Federation, the obligations on the loan must be borne by the spouse who took out the loan. If he does not pay the money, then debt collection may be directed against his property.

If the property is not enough, then the creditor has the right to demand in court that a share of the spouses’ common property be allocated in order for the debtor to repay the debt.

However, the legislation also has such a concept as the presumption of common debts.

Situations often arise when the spouse has to prove that the loan was taken without her knowledge and the money was not spent on the needs of the family.

If the loan was taken out before marriage and the husband does not pay it, can the wife be forced to pay the debt?

The key point in this question is whether the loan was used for the needs of the family? If yes, then the wife will be obliged to repay the debt.

But since the loan was taken out before marriage, therefore, was used for personal purposes, then by law the wife is not obliged to repay this loan.

An exception is the situation if the wife was indicated in the contract as a guarantor, that is, she put her signature on the documents.

To the question: “Should a wife pay a loan for her husband if he took it out and does not pay” there is no clear answer.

Yes, she should if she acted as a guarantor or if the loan was taken for the general needs of the family. And no, it shouldn’t if the loan was taken for the personal needs of the spouse or he took it out before marriage.

However, the woman will still have to prove in court that the money was not spent on the needs of the family. Or the man will have to prove that he spent the loan money on the needs of the family.

Video: Can one spouse take out a loan without the consent of the other and what are the consequences?

It has become much more difficult to collect retail loans from spouse-borrowers, and for the borrowers themselves to shift the loan burden to their life partner. The Supreme Court recently, in fact, abolished the presumption of joint payment of debts of married partners. Banks are preparing to tighten the risks by advising married borrowers to obtain the written consent of their partner in advance for loans of several hundred thousand rubles.

The other day, the Supreme Court published a review of judicial practice for the first quarter of 2016, dated April 13. It follows from the review that when one of the spouses enters into a loan agreement (including a credit agreement), the loan debt can be recognized as common only if it was taken out for family needs. In this case, the burden of proof lies on the party claiming distribution of the debt. Until now, it was assumed that if one of the spouses takes out a loan, then it is for family needs, and, as a result, in the event of non-repayment of the loan, the bank could demand both spouses to answer for it. Now this presumption, in fact, is canceled, and collecting debt from the spouses’ property will be much more difficult, according to participants in the banking market. The review will be brought to all courts of the Russian Federation, which means that they will make similar decisions on similar disputes.

According to bankers, this document changes existing practice. "Now within Art. 45 Family Code* In case of non-payment by the borrower when foreclosure on his property, the bank can foreclose on the common property of the spouses when receiving a loan for the needs of the family. If it is not enough, then the spouses bear joint liability with the property of each of them. This is exactly the practice that banks use when collecting loan debts. The new position of the Supreme Court can change the situation,” says Alexander Bauken, deputy head of the legal department of Chelindbank.

To date, the courts have proceeded from the logic that, until proven otherwise, all loans received by spouses are taken for the needs of the family, notes SDM Bank lawyer Alexander Golubev. “I remember a court dispute when the wife claimed that she did not know about the cash loan her husband had received for his personal business in Cyprus. But since she could not prove this ignorance, the court distributed the responsibility for repaying the loan between the spouses. If such a dispute arose after the release of the Supreme Court review, it would not have been possible to transfer part of the credit burden to the spouse,” he argues.

Such situations are very common.

"I had a case in my practice when a client took out a loan for 1 million rubles, bought a car and gave it to a friend. The wife didn't know. And during the division of property, when not only the rights acquired during marriage are divided, but also obligations, the husband tried to shift the loan obligations to his wife"says Tamila Sakvarelidze, a lawyer at the Moscow Bar Association "Nikolaev and Partners." Or there was a situation when a wife took out a loan to purchase a vacation ticket for her husband. After returning from vacation, the husband filed for divorce, not intending to repay the debt on a loan that was not taken by him , but for him. “It happened,” she continues. The husband inherited an apartment, which he did not inform his wife about, he made repairs to it on credit, but during the divorce he wanted to shift the obligations on the loan to the spouse"

A change in debt collection practices in the situations described is associated with an increase in risks for banks for loans, the issuance of which usually does not require the written consent of the spouse. Now banks enlist them mainly when issuing mortgages. Thus, auto loans and unsecured consumer loans are at risk. “It is not always possible to prove, for example, that a car was purchased by a borrower for family purposes,” notes Vladislav Kotelnikov, deputy director of the distressed assets department of VTB 24.

To mitigate risks, banks are preparing to tighten control over them, namely, to introduce a requirement for borrowers to provide spouses’ consent to receive a loan. “In this case, as with a mortgage now, the obligation to repay will fall on both spouses,” notes Alexander Golubev. According to experts, the new approach may make it difficult to obtain loans. At the same time, bankers plan to first introduce the requirement for the consent of the spouse for car loans as for the largest of the loans at risk.

“I think that in the future all car loans will be issued only with the consent of the spouse,” noted Vladislav Kotelnikov. For other loans, banks will most likely require the consent of the spouse selectively. “I think banks will define materiality criteria under which the consent of the spouse will be required, for example, for unsecured loans from 500 thousand rubles,” noted Alexander Golubev. The largest of the unsecured loans are cash loans.

In most banks, the maximum amount for such a loan ranges from 750 thousand to 3 million rubles. But for consumer loans for the purchase of goods in retail chains (POS loans), consent will most likely not be requested. “Due to the insignificance of the amount: for example, the maximum amount for a consumer loan in our bank is 250 thousand rubles,” says Sergei Vasiliev, vice president of Renaissance Credit. According to Frank Research at the end of 2015, the total volume of the auto loan portfolio of Russian banks amounted to 756 billion rubles, the volume of card loans - 1.3 trillion rubles, cash loans - 4.51 trillion rubles, POS loans - 199 billion rubles.

Through a notary or in court

RF IC Article 38. Division of common property of spouses

""1. The “division of common property” of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses, as well as in the case of a creditor’s request for the division of the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.

""2. The common property of the spouses can be divided between the spouses by agreement. An agreement on the division of common property acquired by spouses during marriage must be notarized.

(as amended by Federal Law dated December 29, 2015 N 391-FZ)

(see text in the previous “edition”)

""3. In the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses' shares in this property, are carried out in court.

""When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

""4. The court may recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them.

""5. Items purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others) are not subject to division and are transferred without compensation to the spouse with whom the children live.

""Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property.

6. In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the subsequent marriage, constitute their joint property.

""7. A three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved. Home Documents Article 39. Determination of shares when dividing the common property of spouses

"Family Code of the Russian Federation" dated December 29, 1995 N 223-FZ (as amended on March 18, 2019)

"" RF IC Article 39. Determination of shares when dividing the common property of spouses

""1. When “dividing the common property” of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

""2. The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family.

""3. When dividing the common property of the spouses, the common debts of the spouses are distributed between the spouses in proportion to the shares awarded to them.

Today, the level of citizens' debt on loans to banks is more than a trillion rubles. Of these, a large percentage of loans were taken for family needs by married couples. The level of income of the population is not growing, and loans are taken out in large numbers in order to provide their family with an acceptable standard of living. In this article we will understand Is the wife liable for her husband's loan? and what is the liability of one spouse for the loans of the other in general.

The situation when the spouses’ marriage breaks up deserves special attention - who will pay off the loans after the divorce? Is there a situation here where one person spends, but another is forced to pay off the loan? To answer this question, it is necessary to consider how the ownership order in the family is determined.

The procedure for joint ownership in a family

The property procedure in Russia is determined by the provisions of the Family Code of the Russian Federation. According to the RF IC, spouses have the right to independently determine the order of ownership, choosing from two options: by law or by contract. According to Art. 34 of the RF IC, all property acquired by spouses during marriage is considered their joint property, to which they have equal rights.

When dividing common property, the common debts of the spouses are also subject to division, which are distributed between the spouses in proportion to the shares awarded to them. Thus, any loan, regardless of who it was issued to, is divided between the spouses upon divorce.

This procedure is approved by law. However, there are nuances that need to be considered, which we will do below.

At the same time, according to Art. 46 of the RF IC, spouses have the right to enter into a marriage contract, in which they specify their property rights and obligations as they please. Spouses also have the right to consider property, for example, as belonging only to one spouse or as belonging to both of them in some special proportion. If a marriage contract is concluded, the spouse’s obligations on the loan can be compensated by his personal property, including this can be determined in such a way that the share of the spouse for whom the loan was issued is deducted from the common property of the spouses.

If the loan is issued to the husband, is the wife obliged to repay it after a divorce?

By default, it is believed that a husband and wife run a joint household and have a common budget, that is, issues of obtaining a loan are resolved by them jointly and there cannot be a situation in which one of them takes out a loan without the knowledge of the other.

However, in practice this still happens, and quite often. This is facilitated by the fact that the bank, in accordance with the law, is not interested in the consent of the second spouse, and, implying that consent has been received, issues a loan.

However, this can lead to a situation where the husband takes out bank loans for his personal needs without spending a penny for family needs. And in case of divorce, according to the law, responsibility for common debts is divided equally between the spouses. What should a wife do in such a situation? “The only way for her is that she must provide evidence that the money taken by her husband from the bank was not spent on the needs of the family.

This is necessary because if the loan was taken out for family needs, both spouses are responsible for it and the loan will be repaid from the income of both the husband and wife. Moreover, if one of the spouses has no income, the second will pay the entire debt on the loan.

How are loans taken for large amounts divided between spouses?

Many banks require a guarantor when applying for a loan for large amounts. Moreover, if the wife acts as a guarantor for the loan, and the husband does not have his own source of income and his own property, then upon the dissolution of their marriage, the loan will be repaid at the expense of the wife’s funds and her property. The situation can only be saved by the situation when the wife’s home is her only home; in this case, the bank cannot seize the debtor’s only home.

How are spouses' loans divided after divorce?

Talking about Is the wife liable for her husband’s loan, it is necessary to understand: if it is proven that the loan funds taken were used for the needs of the family, then, according to Art. 45 of the RF IC, spouses bear responsibility for it with the common property of the family, and if it turns out to be insufficient, jointly and severally liable with their personal property. Thus, debts on loans taken for common family needs are generally divided equally.

If a mortgage loan is issued to one of the spouses, after a divorce, since the property taken under the mortgage is not owned and is pledged to the bank until the loan debt is fully repaid, the exchange or sale of such an apartment is impossible. But spouses have the right to sign a new agreement, according to which the mortgage loan debt will be transferred from one spouse to the second.

When applying for a loan, never allow one of the spouses to act as a guarantor for a loan issued in the name of the second spouse, otherwise in the event of a divorce there is a possibility that the common property of the family will suffer.