Insights

What preparations should be made before Ningbo agreement divorce

Ningbo Author：LuXu WANG

Many people once decided to divorce, the first reaction is to find each other showdown. However, rashly showdown when major issues such as property division and child support have not been clarified will often make the other party alert in advance, resulting in the transfer of property and the destruction of evidence. Whether the preparatory work before the agreement divorce is sufficient directly determines whether the divorce process is smooth and whether their rights and interests can be protected.

1. legal basis

article 1076 of the the People's Republic of China Civil Code: If both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person. The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt settlement.

Article 1092 of the the People's Republic of China Civil Code: If one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to encroach on the property of the other spouse, when the divorce divides the joint property of the husband and wife, the party may be divided less or not. After the divorce, if the other party discovers the above-mentioned acts, he may file a lawsuit in the people's court, requesting another division of the joint property of the husband and wife.

2. core points

1. Fixed evidence: the core link of divorce preparation.

Before the showdown, two key types of evidence should be collected and fixed:

(1) Evidence of emotional breakdown: such as infidelity chat records, domestic violence alarm records, injury photos, hospital diagnosis certificates, separation agreements, etc. This evidence not only helps to negotiate the agreement, but also prepares for possible divorce proceedings. (2) Property evidence: including real estate certificate, vehicle registration certificate, bank account number and running water, stock fund account, equity certificate, creditor's rights and debt certificate, etc. Pay special attention to property clues in the name of the other party to prevent the other party from transferring property before divorce. 2. Sorting out household assets and liabilities

check the joint property and personal property of the husband and wife item by item, including:

  • real estate: real estate, shops, parking spaces, etc.
  • Movable property: vehicles, valuables, household appliances, furniture, etc.
  • Financial assets: bank deposits, wealth management products, equity funds, insurance, etc.
  • Creditor's rights and debts: external loans, loans, guarantees, etc.
  • Company equity, intellectual property proceeds, etc.

For the property that is difficult to find out, it can be supplemented by bank flow analysis, industrial and commercial registration inquiry, real estate information inquiry and so on. When necessary, an application may be made to the court for investigation and collection of evidence after prosecution.

Consider separation: protect your security and property

if the conflict between the two parties intensifying, or there is domestic violence, etc., separation may be considered. Attention should be paid to separation:

  • take away personal valuables and important documents
  • keep evidence of separation, such as rental contracts, utility bills, community certificates, etc.
  • If you are seeking custody of your children, you can arrange for them to live with you during separation, but you should avoid conflicts caused by forcibly taking your children away.

4. File for divorce and negotiate

after making full preparations, we will have a showdown with the other side. Negotiations should:

  • clear their own bottom line and acceptable program
  • prepare multiple alternatives and maintain flexibility
  • important agreements to form a written record, avoid oral commitments
  • involving significant property disposition, it is recommended that lawyers participate in the negotiation and drafting of the agreement.

5. Agreement divorce or court mediation divorce?

If both parties can reach a consensus, they can choose to divorce by agreement or court mediation. However, in the following two cases, it is recommended to give priority to court mediation for divorce:

(1) Involving property transfer: If the other party may not cooperate with the transfer of real estate (including the agreed transfer to children) after divorce, the court mediation agreement has enforcement power and can apply to the court for enforcement. (2) Involving payment of money if the other party has the obligation to pay alimony, compensation, etc., and may refuse to perform the agreement after divorce, the court mediation agreement may directly apply for enforcement to avoid further prosecution.

3. boundary conditions

  • the divorce agreement for divorce by agreement may be reversed before the divorce registration is completed, and may not be changed after the registration is completed.
  • The content of the divorce agreement shall not harm the interests of the children, and the agreement on child support may be subsequently adjusted by the court.
  • If the other party is found to be hiding or transferring property, it may sue for re-division within three years after the divorce.

4. operational steps

1. Preparation stage (before showdown)

  • collecting emotional breakdown evidence and property evidence
  • combing the list of joint property and personal property of husband and wife.
  • Check the joint debt of the husband and wife and the personal debt of the other party.
  • Consult with a lawyer to understand your rights and legal risks

2. Negotiation stage

  • clarify the bottom line and formulate a negotiation plan
  • consultations on core issues such as child support, division of property and assumption of debt
  • will be agreed to form a written draft divorce agreement

3. Agreement review phase

  • ask a lawyer to review the legality and enforceability of the divorce agreement.
  • Pay special attention to the provisions of real estate transfer, payment of money, child support, etc.
  • Agreement on liability for breach of contract and dispute resolution

4. Divorce Registration

  • both parties jointly apply for divorce registration at the Civil Affairs Bureau (Ningbo has already implemented a general office in the province: one party's household registration in Zhejiang Province can make an appointment, and both parties are not Zhejiang household registration and one party needs a Ningbo residence permit)
  • after a 30-day cooling-off period, then jointly apply for a divorce certificate.
  • After receiving the divorce certificate, perform their respective obligations in accordance with the agreement.

5. common mistakes

myth 1: "Showdown before preparation, the other party will cooperate anyway"

error. Once the showdown, the other party may transfer property, destroy evidence, increase the difficulty of divorce. You should be prepared before filing for divorce.

Myth 2: "Agreement divorce is simple, no lawyer review"

error. The divorce agreement involves significant property and personal rights and interests, and the terms are not rigorous, which may lead to subsequent failure to implement. It is recommended to be reviewed by a lawyer.

Misunderstanding 3: "Agreement divorce is more convenient than court mediation divorce"

error. Agreed divorce is indeed a simple procedure, but the divorce agreement is not enforceable. If the other party does not perform, still need to sue. Involving real estate transfer, money payment, court mediation divorce more secure.

Practical Experience of 6. Lawyers

after deciding to divorce, the first reaction is often to have a showdown with the other party, which is precisely the step that is most likely to lose points. If you rashly speak before the division of property and the upbringing of children are cleared up, the other party will be alert in advance and may transfer property and destroy evidence overnight. It will be too late for you to return to your mind. A more stable order is to prepare before talking: first fix the evidence, sort out the property, check the debts, consider the separation arrangement, prepare the negotiation plan and agreement review, and then choose the right time to open the mouth. Among the several things prepared, the fixed evidence is the core-the materials of emotional breakdown (such as chat records, alarm records, medical treatment and injury materials, separation facts) and property materials (real estate, vehicles, accounts and running water, equity, creditor's rights and debt certificates) should be collected as far as possible before the showdown, which not only adds confidence to the negotiation, but also leaves a back hand for possible litigation.

Property and debt should be one item at a time, don't just turn around on "who owns the house. Real estate, deposit management, provident fund and pension accounts, equity and business entities, policy cash value, external creditor's rights and debts, list the ownership, acquisition time and source of capital contribution, pay special attention to the property clues in the name of the other party. If some of them are not clear, they can be supplemented by bank running water, industrial and commercial registration, real estate information, etc., and if necessary, they can apply to the court for investigation after filing a lawsuit. If the contradiction is fierce or there is a real danger, you can consider separation and pay attention to leaving traces: take away personal valuables and important documents, keep the rental contract, utility bills and community certificates; If you want to fight for custody and let your children live with you, try to avoid conflicts caused by forcible taking away. In the negotiation process, the bottom line and acceptable plan should be worked out in advance, and multiple sets of options should be prepared. Important agreements must be written, not verbal commitments.

What really opens the gap is often the quiet preparation before the showdown. One is to keep your mouth shut and don't show your property cards and true intentions during the negotiation. The more exposed, the more room for the other party to dispose of property and exert pressure in the opposite direction. The second is to distinguish what situation and which way to go: if the two parties can reach an agreement, but are worried that the other party will not cooperate with the transfer of real estate after divorce, or have doubts about the payment of alimony and compensation, priority will be given to the way to issue enforcement documents, which is more secure than a paper agreement. In addition, do not use "property under their respective names to their own" such general sentence closing agreement, it will quietly miss important property. The better prepared you are, the more leisurely you talk about it, and the less likely it is to be led by the other party.