Insights

Will Ningbo's first divorce party suffer?

Ningbo Author：LuXu WANG

Many parties, especially women, will ask when consulting: "Who filed for divorce first, who will suffer from the division of property?" There are also people who worry that women are naturally in a weak position in divorce proceedings. Such concerns are common, but from a legal point of view, the outcome of divorce proceedings does not depend on who sues first, nor is it biased by gender.

1. legal basis

article 1079 of the the People's Republic of China Civil Code: If one of the spouses requests a divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court. In handling divorce cases, the people's court shall conduct mediation; if the relationship has indeed broken down and mediation is invalid, the divorce shall be granted.

Article 1087 of the the People's Republic of China Civil Code: At the time of divorce, the common property of the husband and wife shall be disposed of by agreement between the two parties; if the agreement fails, the people's court shall, in accordance with the specific circumstances of the property, take care of the rights and interests of the children, the woman and the innocent party. The principle of judgment.

Article 1088 of the the People's Republic of China Civil Code: If one of the spouses has more obligations due to raising children, caring for the elderly, assisting the other party in work, etc., he has the right to request compensation from the other party at the time of divorce, and the other party shall give compensation. The specific measures shall be agreed upon by both parties; if they fail to reach an agreement, the people's court shall make a judgment.

2. core points

1. "Whoever sues first suffers" has no legal basis.

In divorce proceedings, the plaintiff and the defendant's litigation status is equal. The court will not disadvantage one party by suing first, nor will it be biased because one party is a defendant. The first party to sue has the right to choose the court of jurisdiction, file a claim, and provide evidence, while the defendant has the right to defend, disprove, and present his own claims. The status of both parties in the lawsuit is equal.

2. The division of property follows statutory principles, focusing on children, women and no-fault parties.

In the event of divorce, the joint property of the husband and wife shall, in principle, be disposed of by agreement between the two parties; if the agreement fails, the court shall decide on the basis of the specific circumstances of the property. The court will consider the following factors in its decision:

  • care of children's rights: the party directly raising the child may receive appropriate care in the division of property.
  • Taking care of the rights and interests of the woman: Considering that women may bear more family obligations in marriage, the law clearly gives the woman appropriate care.
  • Taking care of the rights and interests of the innocent party: if one party has committed major faults such as bigamy, cohabitation with others, domestic violence, abuse and abandonment of family members, the innocent party may request more property or damages.
  • Take care of the party who has made a greater contribution to the family: if one party has more obligations due to raising children, caring for the elderly, assisting the other party in work, etc., it has the right to request compensation.

3. Women are not naturally vulnerable in divorce proceedings.

From the perspective of legal provisions, the woman is clearly protected in terms of property division, child support, and economic compensation for divorce. For example:

  • in principle, children under two years of age are directly raised by their mothers.
  • The woman is taken care of in accordance with the law in the division of property.
  • If the woman pays more obligations due to the family, she may claim financial compensation for divorce.
  • If the man's fault leads to divorce, the woman may claim compensation for divorce damages.

Of course, the outcome of the proceedings ultimately depends on the evidence and the facts. If the woman is not aware of her rights and does not give evidence actively, she may indeed be at a disadvantage in the proceedings. Therefore, taking the initiative to understand the law, collect evidence and seek professional help is the key to safeguard their rights and interests.

3. boundary conditions

  • "Taking care of the woman" does not mean "all the property belongs to the woman", and the court will still make a comprehensive judgment based on the source of the property, the size of the contribution, the duration of the marriage and other factors.
  • The principle of "taking care of the woman" may no longer apply or be weakened if the woman herself is at fault (e. g., cheating, domestic violence, etc.)
  • premarital property, personal items, compensation for personal injury, etc. are personal property and do not participate in the division.
  • Financial compensation for divorce is based on the premise that one party has assumed more family obligations in the marriage and needs to be proved.

4. operational steps

1. Dispel psychological concerns and actively exercise rights

  • make it clear that 'there will be no loss in prosecuting first, 'and do not delay defending rights because of fear of losing money;
  • know your legal rights in terms of property division, child support, financial compensation, etc.

2. Collect and fix evidence

  • evidence of joint property of husband and wife: real estate certificate, vehicle registration certificate, bank account, stock fund, equity certificate, etc.
  • Evidence of the other party's fault: infidelity chat records, domestic violence alarm records, injury photos, hospital diagnosis certificates, etc.
  • Evidence of family contribution: vouchers for children's education expenditure, records of caring for the elderly, certificates of housework, etc.

3. Develop litigation strategy

  • clear their core demands: whether to fight for child support, property division ratio, whether to claim damages.
  • Assess the odds and negotiation space based on the evidence situation
  • if necessary, appoint a lawyer and formulate a professional litigation plan.

4. Active participation in the proceedings

  • appear in court on time, fully express the appeal
  • to refute the other party's misrepresentation in a timely manner and submit the corresponding evidence
  • respect the court, avoid emotional expression, debate around the facts and the law

5. common mistakes

myth 1: "Whoever files for divorce first will lose money and share less property"

error. Who sues for divorce first is not necessarily linked to the division of property. The court decides on the division of property based on the provisions of the law and the facts of the case, not who filed for divorce first.

Misunderstanding 2: "The woman must suffer in divorce"

error. The law clearly stipulates that the rights and interests of children, women and innocent parties should be taken into account in the division of property. As long as the woman actively claims her rights and provides evidence, she can get a fair or even more favorable result in divorce proceedings.

Myth 3: "As long as the man is at fault, the woman will be able to share most of the property"

error. The principle of taking care of the no-fault party is only one of the factors to be considered in the division of property, and does not mean that the party with the fault is "out of the house". The court will still consider the source of property, marital contribution, child support and other factors, to make a fair judgment.

Practical Experience of 6. Lawyers

whoever sues first is one of the most common concerns in the consultation, but it is not legally established. The litigation status of the plaintiff and the defendant is equal. The court's decision not to leave, how to divide the property, and who the child is with depends on the law and the facts of the case, not who submitted the complaint first. On the contrary, the party who takes the initiative to sue also has some practical initiative: it can choose the court with jurisdiction, determine the claim, and arrange the rhythm of the evidence. Put this knot down, you can put your energy on things that really affect the results.

It is better to see where the care given by the law falls than to struggle with who will open the mouth first. When dividing the common property, the rights and interests of the children, the woman and the innocent party will be taken care of comprehensively; if one party bears more obligations due to raising children, caring for the elderly, and assisting the other party in work, he has the right to request compensation during divorce; there are bigamy, cohabitation with others, In the case of statutory faults such as domestic violence, abuse and abandonment, the innocent party may request compensation for divorce damages. These are the factors that can really change the outcome. Therefore, your preparation direction should be to make solid evidence of family contributions, each other's faults and property status, rather than waiting for someone to let you go.

Judging from the experience of handling cases, those who mention divorce first should really guard against haste. A common mistake is to rush to sign an unfair agreement at the first thought, or to show all the property cards during the negotiation, so that the other party can transfer calmly. The more stable rhythm is: first silently sort out the clues of banks, real estate, equity and provident fund, think clearly about the lower limit you can accept and the upper limit you want to fight for, and then decide whether to take the agreement or the lawsuit. If the other party delays, don't lose it in your emotions. After the judgment is not allowed to divorce, you can enter and fix the separation state in time to pave the way for the next lawsuit. The initiative is often hidden in this rhythm.